Opinion
NO. WR-75,105-02
03-27-2024
EX PARTE Randall Wayne MAYS, Applicant
Michelle Ward, Benjamin Wolff, Sarah Brandon, for Applicant.
ON APPLICATION FOR WRIT OF HABEAS CORPUS, CAUSE NO. B-15,-717 IN THE 392 ND JUDICIAL DISTRICT COURT, HENDERSON COUNTY
Michelle Ward, Benjamin Wolff, Sarah Brandon, for Applicant.
OPINION
Per curiam.
This is subsequent application for a writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071, Section 5.
Unless otherwise indicated, all references in this opinion to Articles refer to the Texas Code of Criminal Procedure.
The Court declares that Applicant has met "the diagnostic criteria for intellectual disability under Atkins and Moore. Moore v. Texas, 581 U.S. 1, 137 S. Ct. 1039, 1044, 197 L.Ed.2d 416 (2017); Moore v. Texas, — U.S. —, 139 S. Ct. 666, 203 L.Ed.2d 1 (2019)." Majority Opinion at 748. Under both Atkins and the two Moore cases, however, intellectual disability was assessed under earlier versions of the DSM manuals—the DSM-IV-TR (2000) and the DSM-5 (2013), respectively. The criteria for discerning a diagnosis of intellectual disability have changed incrementally with each passing edition of the DSM, and it has become at least marginally less burdensome for applicants to satisfy the criteria with each successive manual. In any event, the recommended findings of fact and conclusions of law proposed by the parties and adopted by the convicting court exclusively applies the diagnostic criteria from the most recent DSM-5-TR, under which it has become easier still to establish ID.
In May 2008, a jury convicted Applicant of capital murder for the shooting death of Henderson County Deputy Sheriff Tony Ogburn. See Tex. Penal Code § 19.03(a)(1). The jury answered the special issues submitted pursuant to Article 37.071, and the trial court, accordingly, sentenced Applicant to death. This Court affirmed Applicant’s conviction and sentence on direct appeal. Mays v. State, 318 S.W.3d 368 (Tex. Crim. App. 2010).
Applicant thereafter filed in the trial court his initial post-conviction application for a writ of habeas corpus raising nine claims, including a claim that the execution of a mentally ill person was not constitutionally permissible. After reviewing the merits of the claims, this Court denied relief. Ex parte Mays, No. WR-75, 105-01, 2011 WL 1196799 (Tex. Crim. App. Mar. 16, 2011) (not designated for publication).
Applicant also filed in federal court a petition for a writ of habeas corpus in which he alleged, inter alia, that he should not be executed because he is intellectually disabled. See Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). The federal district court denied relief, and the Fifth Circuit denied a certificate of appealability. Mays v. Director, Tex. Department of Criminal Justice-Correctional Institutions Division, 2013 WL 6677373, 2013 U.S. Dist. LEXIS 177921 (E.D. Tex., Dec. 18, 2013); Mays v. Stephens, 757 F.3d 211 (5th Cir. 2014). The United States Supreme Court denied certiorari. Mays v. Stephens, 574 U.S. 1082, 135 S.Ct. 951, 190 L.Ed.2d 844 (2015).
When Applicant was set for execution, he challenged his competency to be executed under Article 46.05. The trial court denied the challenge, but this Court determined that Applicant made a sufficient threshold showing for the appointment of experts. Mays v. State, 476 S.W.3d 454 (Tex. Crim. App. 2015). The trial court later determined that Applicant was competent to be executed, and this Court affirmed that decision. Mays v. State, No. AP-77,055, 2019 WL 2361999 (Tex. Crim. App. June 5, 2019) (not designated for publication). Applicant again challenged his competency to be executed when he was set for execution a second time. The trial court denied the challenge. Applicant’s appeal of the trial court’s decision, Mays v. State, No. AP-77,093, is pending in this Court.
In April 2020, Applicant filed in the trial court this subsequent application for a writ of habeas corpus. He also filed a motion for a stay of execution in this Court in May 2020. In his subsequent habeas application, he raises four claims challenging the validity of his conviction and resulting sentence. Applicant asserts in one of the claims (Claim 1) that he is intellectually disabled and ineligible for the death penalty under Atkins. We determined that the intellectual disability claim satisfied the requirements of Article 11.071, Section 5. Ex parte Mays, No. WR-75,105-02 (Tex. Crim. App. May 7, 2020) (not designated for publication). We stayed Applicant’s execution, and we remanded the application to the trial court for a review of the merits of the intellectual disability claim. Id.
In December 2022, the trial court held a hearing in which the parties made brief statements and submitted exhibits, including Applicant’s educational records and reports from defense experts Dr. Diane Mosnik and Dr. Joan Brennan (formerly Mayfield) and State’s expert Dr. Antoinette McGarrahan. In her report dated October 3, 2019, Mosnik concluded that Applicant meets the criteria for a diagnosis of mild intellectual disability "according to the diagnostic criteria of both the Diagnostic and Statistical Manual of Mental Disorders-5th edition and the Intellectual Disability: Definition, Classification, and Systems of Supports (11 th Edition) manual published in 2010 by the American Association on Intellectual and Developmental Disabilities." In her declaration dated October 19, 2022, Brennan concluded that "regardless [of] the definition used (DSM-5-TR or AAIDD), … [Applicant] meets [the] criteria for a diagnosis of Intellectual Disability." In her report dated Novem- ber 9, 2022, McGarrahan said that she "cannot controvert the conclusion and opinion of Dr. Mosnik that [Applicant] meets the full diagnostic criteria for intellectual disability according to current standards (DSM-5-TR and AAIDD)."
Applicant also submitted numerous written declarations from family members and former classmates and teachers. These declarations were signed "under penalty of perjury," but were not notarized. However, Mosnik states in her report that she "conducted direct interviews" with seven of the declarants: Dorothy and John Hillis; Sherrie and Lonnie Ross; Curtis Corley; Emily Whatley; and Sandra Dees Ruberdeau.
See Atkins v Virginia, 536 U.S 304, 122 S.Ct 2242, 153 L.Ed 2d 335 (2002).
In Jean, as in this case, the applicant could have raised ID at trial, but unlike in this case, the applicant in Jean raised ID for the first time in his initial post-conviction writ application. In dissent there, I advocated potentially imposing a higher burden of proof on such an applicant than the ordinary preponderance standard. 667 S.W.3d at 771. Even so, I also allowed that the heightened burden "might even be something somewhat less onerous than the Blue standard for subsequent writs," but I argued that it should be "at least marginally more taxing than the ordinary preponderance standard." Id.
Blue was tried before Atkins was decided, and he was therefore not in a position to raise ID until his initial writ application. Applicant could have raised ID at trial, or in his initial writ, but he did neither. Because Applicant was tried after Atkins, he could have raised ID at two points previous to this subsequent application—at trial and in his initial writ application. He should therefore be required at least to satisfy the Blue standard.
These manuals are referred to as the "DSM-5" and the "AAIDD." The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision, which is the 2022 update to the DSM-5, is referred to as the "DSM-5 TR."
Petetan v State, 622 S W.3d 321, 334 (Tex Crim. App 2021)
Indeed, the successive manuals may not even accurately reflect the consensus of the psychiatric profession itself, much less the consensus of society. It has recently been observed that "[e]ven seemingly small changes to the [DSM] manual ([e.g.], to symptomatology of previously included disorders) can have a substantial impact on increasing the number of people who would receive a diagnosis[,]" and thus "lead to overdiagnosis[.]" Lauren C. Davis, et al., Undisclosed Financial Conflicts of Interest in DSM-5-TR: Cross Sectional Analysis 384 BMJ 5 (2024), https://dx.doi.org/10.1136/bmj-2023-076902. For this Court to uncritically adopt the latest expression of the apparent consensus of the psychiatric community as to the appropriate diagnostic criteria for ID, overinclusive though that expression may be, constitutes an abdication of the Court's judicial role, as required by the United States Supreme Court, to determine the consensus of American society with respect to who may and may not be executed for a capital crime consistent with the Eighth Amendment.
Brennan previously conducted a neuropsychological evaluation of Applicant in 2009 and diagnosed him with "Dementia NOS secondary to chronic amphetamine and related sympathomimetic abuse" and "Depressive Disorder, NOS." She declined to diagnose Applicant with intellectual disability at that time. However, in 2022, she reviewed additional information and "supplement[ed her] prior diagnosis" to include intellectual disability. Brennan signed her 2022 declaration "under penalty of perjury," but it is not notarized.
Gallo v. State, 239 S.W.3d 757, 770 (Tex. Crim. App 2007)
See Findings of Fact and Conclusions of Law, Conclusions ## 6, 11 & 13, at 24-25 (concluding that Applicant has shown by clear and convincing evidence that he suffers from sub-average intellectual functioning, adaptive deficits, and onset of same during the developmental period).
On February 10, 2023, the trial court signed "Agreed Findings of Fact and Conclusions of Law" recommending that relief be granted on Applicant’s intellectual disability claim. "Based on the record before the Court, and with the agreement of both the State and the Applicant," the trial court concluded that Applicant "has intellectual disability" under the "prevailing medical standards for diagnosing intellectual disability[,]" specifically citing the DSM-5-TR. The trial court concluded that Applicant "has shown by clear and convincing evidence that no rational factfinder would fail to find him intellectually disabled." See Ex parte Blue, 230 S.W.3d 151, 163 (Tex. Crim. App. 2007).
In Petetan v State, 622 S.W.3d 321, 325 (Tex. Crim. App. 2021), we reiterated that we apply "contemporary clinical standards" to assess intellectual disability. At that time, the "contemporary clinical standard" was the DSM-5 that was published in 2013. However, the newest version of this standard is the DSM-5-TR that was published in 2022. At the time we wrote Petetan, the DSM-5 required "deficits in intellectual functioning that are directly related to the intellectual impairments[.]" 622 S.W.3d at 333. The DSM-5-TR appears to remove this "relatedness" requirement.
Williams v State, 270 S.W.3d 112, 115 (Tex. Crim. App. 2008)
The Court says it bases its disposition not just on the convicting court’s recommended findings of fact and conclusions of law, but also on its "own review[ ]" Majority Opinion at 748 But the Court does not convey what it is about Applicant’s evidence that would convince it, by clear and convincing evidence, that no rational jury would fail to find him to be intellectually disabled. Suffice it to say, I am not so convinced
We agree that Applicant meets the diagnostic criteria for intellectual disability under Atkins and Moore. Moore v. Texas, 137 S. Ct. 1039, 1044 (2017); Moore v. Texas, — U.S. —, 139 S. Ct. 666, 203 L.Ed.2d 1 (2019). Based upon the trial court’s findings and conclusions and our own review, we grant relief by reforming Applicant’s sentence of death to a sentence of life imprisonment without parole.
Applicant alleges in his remaining claims that: racial bias tainted his conviction and death sentence (Claim 2); his jury engaged in prejudicial misconduct (Claim 3); and he was improperly interrogated in violation of his constitutional rights (Claim 4). With regard to these claims, we find that Applicant has failed to satisfy the requirements of Article 11.071, Section 5. Accordingly, we dismiss these claims as an abuse of the writ without reviewing the merits.
IT IS SO ORDERED THIS THE 27th DAY OF MARCH, 2024.
Keller, P.J., filed a dissenting opinion in which Slaughter, J., joined.
Yeary, J., filed a dissenting opinion in which Keller, P.J., joined.
Keel, J., dissented.
Keller, P.J., filed a dissenting opinion in which Slaughter, J., joined.
The Court imposes the wrong remedy when it grants relief on Applicant’s intellectual-disability claim without having allowed that claim to be tested in an adversarial trial before a jury. This remedy conflicts with the legislative decision to require a jury trial in death-penalty cases.
Article 1.13 makes clear that a jury trial cannot be waived in a death-penalty case:
The defendant in a criminal prosecution for any offense other than a capital felony case in which the state notifies the court and the defendant that it will seek the death penalty shall have the
right, upon entering a plea, to waive the right of trial by jury …1a
This reflects a legislative determination that all factual issues bearing on the imposition of the death penalty are to be decided by a jury. Logically, that includes the question of intellectual disability.
Under Atkins v. Virginia, intellectual disability is a defensive issue that, if raised and proven, prevents the imposition of the death penalty.2a "Atkins and its progeny did not hold that an intellectual-disability determination was something other than a sentencing issue."3a We have likened the issue to an "affirmative defense" that can be litigated at the punishment stage of trial and must be proven by a preponderance of the evidence.4a A jury finding against a defendant on intellectual disability can be reviewed for factual sufficiency on appeal.5a In conducting such a review, we are required to give "great deference" to the jury’s finding and determine whether the finding is "so against the great weight and preponderance of the evidence so as to be manifestly unjust."
Id
But there has been no jury finding here. Despite the fact that Atkins was decided well before Applicant’s trial, he did not seek a jury determination of intellectual disability. Although the standards for determining intellectual disability may have changed enough to justify Applicant’s tardy raising of the claim, that does not mean we should bypass a jury now. In fact, bypassing a jury on a death-penalty sentencing issue conflicts with the legislature’s imposition of an unwaivable requirement that a jury decide whether the death penalty should be imposed. Consequently, the proper remedy is to remand for a new punishment hearing at which the intellectual disability issue can be decided.
Because the Court reforms the sentence to life instead of remanding for a jury to consider the issue of intellectual disability, I respectfully dissent.
Yeary, J., filed a dissenting opinion in which Keller, P.J., joined.
Once again in this subsequent capital post-conviction application for writ of habeas corpus, brought under Article 11.071 of the Texas Code of Criminal Procedure, the Court concludes that an applicant is intellectually disabled and grants him relief in the form of reformation of his sentence from death to life without parole. Tex. Code Crim Proc. art. 11.071. But the Court does so, once again, without addressing several very important predicate issues. I will endeavor here to describe them.
Applicant was tried and convicted of capital murder in 2008 for an offense committed in 2007. This all happened six years after the United States Supreme Court issued its opinion in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), which decided for the whole country that execution of a capital offender who was intellectually disabled (hereafter, "ID," nee mentally retarded) at the time of his offense would violate the Eighth Amendment. But Applicant did not raise ID at trial. And he did not raise it on appeal. Nor did he even raise it in his initial post-conviction application for writ of habeas corpus, filed in 2010—eight years after Atkins was decided. Instead, Applicant has waited to raise the issue of ID until now, in a subsequent post-conviction application for writ of habeas corpus filed in 2020, some twelve years after his trial and eighteen years after the Supreme Court’s decision in Atkins.
The Court apparently concludes that Applicant has satisfied the criteria for a diagnosis of ID as set out in the latest manual of the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (2022), or DSM-5-TR.1b But because Applicant did not raise this issue in his initial writ application, the Court applies the higher standard for relief announced first in Ex parte Blue, 230 S.W.3d 151, 162-63 (Tex. Crim. App. 2007), and finds that Applicant has satisfied that standard. Majority Opinion at 748.
Under Blue, an applicant can successfully raise ID for the first time in a subsequent writ application under section 5(a)(3) of Article 11.071, but only if he can demonstrate that he satisfies the diagnostic criteria for ID so clearly and convincingly that no rational factfinder would fail to find him intellectually disabled. Blue, 230 S.W.3d at 162; Tex Code Crim Proc art. 11.071 § 5(a)(3). This was designed to be an onerous standard. Blue’s trial occurred before Atkins was decided, however, and so he could not have raised ID then. The Blue standard was announced in the context, then, of an applicant who could not have raised ID at his trial, but who could have raised it in his initial writ application, but did not do so there, and then finally raised ID for the first time in a subsequent writ application, such as the one the Court addresses today.
First: Procedural Default? This case is not, then, in the same procedural posture as Blue. Because Applicant was tried eight years after Atkins, unlike Blue, he could have raised ID at trial. And yet, this Court still has not explicitly said why an applicant in this posture should not be deemed simply to have procedurally defaulted his ID claim by failing to litigate it at trial. See Ex parte Jean, 667 S.W.3d 766, 766-69 (Tex. Crim. App. 2023) (Yeary, J., dissenting).2b As in Jean, the Court grants relief without even addressing this threshold procedural default issue.
Second: The Correct Diagnostic Criteria? Perhaps it may be argued (although the Court today does not) that Applicant has waited so long to raise his ID claim because he could not, in any event, have satisfied the diagnostic criteria under earlier DSM manuals. But of course, that begs the question of whether the DSM manuals—that have issued since Atkins was decided—represent anything more than just the normative values of the psychiatric community. The argument assumes that the more recent DSM manuals also accurately capture the so-called national consensus with respect to society’s tolerance of the death penalty. See Ex parte Segundo, 663 S.W.3d 705, 712-15 (Tex. Crim. App. 2022) (Yeary, J., dissenting).3b With each successive DSM manual, though, it seems to me that the courts should be required to determine whether ID, as described by each successive, less rigorous diagnostic criteria, still corresponds to society’s own so-called "evolving standards of decency" for Eighth Amendment purposes. Id.
Third: Has Applicant Indeed Satisfied Blue ? Even assuming that (1) Applicant has not procedurally defaulted his right to relief—at least under the Blue standard—and that (2) his claim of ID ought properly to be measured under the diagnostic criteria adopted by the latest DSM manual, it is still not at all clear to me that Applicant is entitled to relief. At this late date, Applicant has admittedly presented substantial evidence from which a rational factfinder could conclude, by almost any level of confidence, that he was intellectually disabled as of the time of his offense. But the proffer of sufficient—or even substantial—evidence to prove ID does not alone satisfy the Blue standard.
The question is not what a factfinder could rationally conclude from the proffered evidence, as in a legal sufficiency analysis. Rather, the question that Blue requires us to ask is whether no rational factfinder would fail to draw the ID conclusion in the face of the evidence. Blue, 230 S.W.3d at 162. And, before granting relief, the Court must conclude that the evidence is clear and convincing in this regard. Id. I am not convinced to that level of confidence that no rational jury would fail to find Applicant ID based upon his evidence, even under the more forgiving DSM-5-TR diagnostic criteria.
It is true that the convicting court judge, in adopting the proposed findings and conclusions of the parties, declared herself to be convinced by clear and convincing evi- dense that Applicant has demonstrated his ID.4b But convincing the judge, even to that high level of confidence, is not the same as presenting ID evidence that is so clear and convincing that no rational factfinder would fail to find ID. 5b Cf. Ex parte Harleston, 431 S.W.3d 67, 91-92 (Tex. Crim. App. 2014) (Price, J., concurring) (observing that what is required by the so-called "actual innocence" standard of Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996), is not whether the convicting court judge finds by clear and convincing evidence that he would not have convicted the applicant, but whether it finds new exculpatory evidence to be so clear and convincing that no reasonable juror would have convicted him); Ex parte Navarijo, 433 S.W.3d 558, 573-74 (Tex. Crim. App. 2014) (Price, J., concurring) ("That the convicting court chose to believe the complaining witness’s recantation in this case … does not necessarily compel us to answer the dispositive question—‘Would no reasonable juror convict?’—in the applicant’s favor."). The Court should apply the proper standard.
Fourth: The Proper Remedy? Finally, it remains unclear to me whether, even if Applicant has met whatever burden he should have to shoulder to prove intellectual disability, the proper disposition is for this Court to just unilaterally reform his death penalty to life without parole. The Court has still not expressly addressed the question of whether the more appropriate disposition, at least for capital cases that were tried post-Atkins, might be to remand the case to the convicting court to empanel a new jury to determine the issue of intellectual disability there, in the first instance. Ex parte Lizcano, 607 S.W.3d 339, 340-41 & n.6 (Tex. Crim. App. 2020) (Yeary, J., dissenting); Segundo, 663 S.W.3d at 711-12 (Yeary, J., dissenting); Ex parte Long, 670 S.W.3d 685, 686 (Tex. Crim. App. 2023) (Yeary, J., dissenting).
For all these reasons, yet again, I must respectfully dissent.