Full opinion text
OPINION PRICE, J., delivered the opinion of the Court, in which MEYERS, WOMACK, JOHNSON, HOLCOMB, and COCHRAN, JJ., joined. In his subsequent application for a writ of habeas corpus, the applicant claimed that he is mentally retarded. We found that the applicant had met the requirements of Code of Criminal Procedure Article 11.071, Section 5, and we remanded to the trial court for findings of fact and conclusions of law. The trial court found that the applicant is retarded. Because the record supports the trial court’s findings, we grant relief. I. Procedural History The applicant was convicted of capital murder and sentenced to death in 1985. On direct appeal, the conviction was affirmed. In his initial application for habe-as corpus relief, we reversed the conviction for Penry error. The applicant was retried in 1992, and he was once again convicted and sentenced to death. The conviction and sentence were affirmed on appeal. We denied relief in the applicant’s initial writ application for this conviction. He filed this subsequent writ application after the United States Supreme Court began to consider, in Atkins v. Virginia, whether the execution of mentally retarded people violates the Eighth Amendment to the Constitution. We dismissed the application. The Supreme Court granted a stay of execution, and nine days later, it delivered the opinion in Atkins, in which it held that executing the mentally retarded violates the Eighth Amendment. Later, the Supreme Court granted the applicant’s petition for a writ of certiorari, vacated our prior decision dismissing his application, and remanded m light of its decision in Atkins. We remanded the case to the trial court to make findings and conclusions about whether the applicant is mentally retarded. On remand, the State agreed and the trial court found that the applicant is mentally retarded. This finding was based on three reports in which three different mental health experts concluded that the applicant is mentally retarded. II. The Law The United States Supreme Court held in Atkins that, under evolving standards of decency, the Eighth Amendment to the United States Constitution prohibits the execution of people who are mentally retarded. The Supreme Court cited with approval the definitions set out by the American Association on Mental Retardation (AAMR) and the American Psychiatric Association (APA). Basically, mental retardation is defined as (1) significant subaverage general intellectual functioning, (2) concurrent with deficits in adaptive functioning, (3) occurring before age 18. In the absence of legislative direction, we recently adopted those criteria, which are consistent with the definition the legislature set out in Health and Safety Code Section 591.003(13). In Ex parte Briseno, we concluded that the criteria in these definitions are subjective, and thus, we set out some additional factors that factfinders may use. We will review the record and apply the criteria we adopted in Briseno. III. The Record The first report in the record is from Dr. Joseph P. Kartye, Jr., a psychologist who examined the applicant and testified during the 1985 trial. The trial court admitted this report during the 1985 trial. At the time, the applicant was 36 years old. As part of his examination of the applicant, Kartye administered the Wech-sler Adult Intelligence Scale. The applicant achieved a full scale I.Q. score of 64. He also administered the Wide Range Achievement Test. The results showed that the applicant’s reading, spelling, and arithmetic abilities were at or below the third-grade level. Kartye concluded that the applicant’s intellectual deficits contributed directly to his inability to cope with life’s day-to-day demands: the applicant “lacks the cognitive and behavior controls necessary to regulate his behavior.” Kar-tye concluded, in essence, that the applicant is mildly mentally retarded. The second report on which the trial court relied in concluding that the applicant is mentally retarded was by Dr. Ernest Brownlee, Jr., a psychiatrist who examined the applicant in 1988. Brownlee’s report was admitted during the applicant’s 1992 trial. According to the report, the applicant possesses an “extremely limited problem solving ability.” The applicant’s memory is consistent with an organic brain disorder. Also, the applicant is highly influenced by others, particularly his family. He said it is highly likely that the applicant could not function outside of a structured setting and should be housed either in a state school or at the Rusk State Hospital. Brownlee concluded that the applicant is mildly mentally retarded. The third report on which the trial court based its conclusion was prepared by Dr. Frankie Clark, a licensed psychologist who examined the applicant in 1992, and who testified at the applicant’s 1992 trial. The report was admitted into evidence during that trial. Clark administered the Wech-sler Adult Intelligence Scale (Revised), and the applicant achieved a full scale I.Q. score of 58. Clark also administered the Wide Range Achievement Test (Revised Level II), and in reading, spelling, and arithmetic the applicant’s abilities were at or below a third-grade level. Regarding the' applicant’s adaptive functioning, Clark concluded that the applicant possessed significant deficits. He possesses regressed and intellectually defective coping skills; his approach to his environment is concrete; he is unable to interpret many abstract stimuli; he has significant difficulties with interpersonal relationships; and he tends to misinterpret or distort perceptual input from other people, which most likely is the cause of his inability to make conventional or socially acceptable responses. Clark concluded that the applicant is mildly retarded and that his thought processes and emotions appear to show retardation in all areas. She also concluded that the applicant has been retarded since birth. Clark also noted that the Texas Department of Criminal Justice (TDCJ) Mentally Retarded Offender Program examined the applicant in 1989. The social assessment performed at that time showed that the applicant possessed significantly subaver-age adaptive behavior with the condition being developmental in nature. School records that Clark reviewed showed that the applicant was a slow learner with a speech defect. He repeated the sixth grade, and completed school only through the seventh grade. TV. Analysis As we explained above, the trial court used the criteria set out by the AAMR and the APA. The trial court did not use the Briseno factors in its findings because it did not have the benefit of our order in that case. Nonetheless, we conclude that the trial court’s findings are supported by the record. This is not a case in. which we have dueling experts. The three reports from the mental health experts that the trial court considered are consistent with one another and with the report from the TDCJ Mentally Retarded Offender Program. The reports establish that the applicant has (1) significant subaverage general intellectual functioning, (2) concurrent with deficits in adaptive functioning, (3) that occurred before age 18. The applicant’s IQ scores of 58 and 64 are well below the 70-75 score that generally indicates subaverage general intellectual functioning. Clark found that the applicant possesses deficits in several adaptive functioning categories, and she found that the applicant has been retarded since birth. The claim that the parties litigated the applicant’s mental retardation claim during the 1992 trial is incorrect. Although evidence was admitted on the issue of mental retardation, there certainly was no special issue on mental retardation included in the jury charge. This evidence was relevant to the mitigation special issue. If the applicant is mentally retarded, it mitigates his moral culpability. And, just because the jury answered the mitigation special issue “no” is not the equivalent of a jury finding that the applicant is not mentally retarded. Also the claim that the applicant “filed” a coherent pro se brief on direct appeal from his 1985 conviction does not necessarily support the conclusion that the applicant is not mentally retarded. It is common knowledge that there are “writ writers” in TDCJ who will write pleadings for other inmates. While there may be some evidence to the contrary, there is significant evidence that the applicant is mentally retarded. The record supports the trial court’s finding that the applicant is mentally retarded. The same trial judge who presided over the applicant’s two trials made the findings and conclusions in this case. That trial judge was in the best position to evaluate conflicting evidence, and his findings deserve great deference. In fact, it is not surprising that the trial judge found that the applicant was mentally retarded in this case. While Penry was pending before the United States Supreme Court, the applicant filed a subsequent application for a writ of habeas corpus. He claimed that he is mentally retarded and that the execution of the mentally retarded violated the Eighth Amendment to the United States Constitution. He also claimed that he was prevented from having the jury consider his evidence of mental retardation in the context of the special issues that were provided in the jury charge of his first trial. During those proceedings the trial judge found that the applicant is mentally retarded. As part of his findings, the trial judge said At the punishment phase of his trial, petitioner did testify and was allowed to present evidence of his mental retardation, brain damage, alcoholism, alcohol consumption at the time of the offense and purported abuse he suffered as a child. These matters were presented as mitigating factors of his punishment.... [P]etitioner is mentally retarded. The trial court’s finding has not changed. We filed and set that application and granted relief on the basis of Penry error. In our unpublished opinion disposing of the case, we quoted Kartye’s testimony from the punishment phase of the applicant’s 1985 trial. He said that “even under repeated testings in optimal conditions, his score would fall in the mentally retarded range.” After we discussed the Supreme Court’s opinion in Penry and how evidence of mental retardation presents a double-edged sword, we said, Mr. Modden’s evidence of mental retardation presented the same problem. Even as a rational jury might have found that appellant’s mental condition made him less blameworthy, they were required to express their consideration of his mental condition in a way that would cause him to receive the ultimate sanction. The second special issue simply did not provide the jury with a way to give effect to mitigating evidence of mental retardation in this case. This Court has previously concluded that the applicant presented evidence of mental retardation at his 1985 trial. We want to make clear that the parties’ attempt to strike a plea bargain regarding the applicant’s status as a mentally retarded person has no bearing on the outcome of this case. The trial court found, long before any agreement between the parties, that the appellant is mentally retarded. Our decision today is based solely on the trial court’s findings, which are supported by the record. We conclude that the record supports the trial court’s findings that the applicant is mentally retarded. As a result, we grant relief. We reform the applicant’s sentence to life imprisonment in the Texas Department of Criminal Justice Correctional Institutions Division. KELLER, P.J., concurred in the judgment. HEKVEY, J., filed a dissenting opinion, in which KEASLER, J., joined. . Modden v. State, 721 S.W.2d 859 (Tex.Crim.App.1986). . Ex parte Modden, No. 71,312 (Tex.Crim.App. delivered Feb. 12, 1992) (not designated for publication); see Penry v. Lynaugh, 492 U.S. 302, 328, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (holding that jurors that are considering the death penalty must have a vehicle to give effect to their reasoned moral response to the defendant's mitigating evidence). . Modden v. State, No, 71,493 (Tex.Crim.App. delivered June 8, 1994) (not designated for publication). . Ex parte Modden, No. 11,364-04 (Tex.Crim.App. delivered July 1, 1998) (not designated for publication). . Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). . Modden v. Texas, 536 U.S. 954, 122 S.Ct. 2654, 153 L.Ed.2d 831 (2002). . While this case was on remand to the trial court, the State and the applicant made an agreement that, in exchange for not challenging the applicant’s claim that he is mentally retarded, the applicant would plead guilty to five offenses: aggravated assault with a deadly weapon (1976), arson (1985), deadly weapon in a penal institution (1987), deadly weapon in a penal institution (1992), and retaliation (1992). The State agreed to stipulate that the applicant is mentally retarded and present to the trial court agreed proposed findings of fact and conclusions of law on the remand from this Court. And the State filed a motion in the trial court to reform the applicant’s sentence. Our holding in this case is not based on the agreement or the motion. . Atkins, 536 U.S. at 321, 122 S.Ct. 2242. . The Supreme Court quoted the AAMR definition of mental retardation in Atkins: Mental retardation refers to substantial limitations in present functioning. It is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation manifests before age 18. Id. at 308 n. 3, 122 S.Ct. 2242 (quoting Mental Retardation: Definition, Classification, and Systems of Supports 5 (9th ed.1992)). . The Supreme Court quoted the APA of mental retardation in Atkins: The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). Mental Retardation has many different etiologies and may be seen as a final common pathway of various pathological processes that affect the functioning of the central nervous system. "Mild" mental retardation is typically used to describe people with an IQ level of 50-55 to approximately 70. Ibid, (quoting American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 41, 42-43 (4th ed.2000)) (citations omitted). . Ex parte Briseno, 135 S.W.3d 1, 8 (Tex.Crim.App., 2004). .The additional factors adopted in Briseno include the following: • Did those who knew the person best during the developmental stage — his family, friends, teachers, employers, authorities— think he was mentally retarded at that time, and, if so, act in accordance with that determination? • Has the person formulated plans and carried them through or is his conduct impulsive? • Does his conduct show leadership or does it show that he is led around by others? • Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable? • Does he respond coherently, rationally, and on point to oral or written questions or do his responses wander from subject to subject? • Can the person hide facts or lie effectively in his own or others' interests? • Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose? Briseno, op at 8. . Although Kartye did not use the term mildly mentally retarded in his report, the facts discussed in the report indicate that the applicant has significant subaverage general intellectual functioning concurrent with deficits in adaptive functioning that manifested before age 18. This report is evidence of mental retardation and was admitted during the 1985 trial. . The mitigation special issue asks the jury "[wjhether taking into consideration all of the evidence, including the circumstances of the offense, the defendant’s character and background, and the personal moral culpability of the defendant, there is sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.” Tex.Code Crim. Proc. art. 37.071, § 2(e)(1). . Ex parte Modden, No. 71,312 (Tex.Crim.App. delivered Feb. 12, 1992) (not designated for publication). . Id.., slip op. at 2. . Id,, at slip op. at 2-3.
HERVEY, J., dissenting, in which KEASLER, J., joined. I respectfully dissent. The Court commutes applicant’s death sentence to a life sentence based upon its decision that the record supports a finding that applicant is mentally retarded. However, after a careful consideration of all of the evidence, I would hold that the record does not support this finding. In Atkins v. Virginia, the United States Supreme Court decided that the Eighth Amendment’s “evolving standards of decency that mark the progress of a maturing society” prohibit executing mentally retarded people. See Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 2247-52, 153 L.Ed.2d 335 (2002). Atkins left to the states “the task of developing appropriate ways” to determine “which offenders are in fact retarded.” See Atkins, 122 S.Ct. at 2250. In response to this, this Court in Ex parte Briseno adopted the American Association on Mental Retardation (AAMR) criteria, which are codified in Tex. Health & Safety Code § 591.003(13), and some other evidentiary factors in addressing Atkins mental retardation claims. See Ex parte Briseno, 135 S.W.3d 1, 6, 8 (Tex.Cr.App., 2004) (mental retardation means “significant subaverage general intellectual functioning that is concurrent with deficits in adaptive behavior and originates during the developmental period”). We also stated in Briseno that “the ultimate issue of whether [a] person is, in fact, mentally retarded for purposes of the Eighth Amendment ban on excessive punishment is one for the finder of fact, based upon all of the evidence and determinations of credibility.” See Briseno, op. at 8. This latter statement, however, does not quite apply to this habeas proceeding for several reasons. The record in this habeas proceeding reflects that, in exchange for applicant’s guilty plea to several criminal offenses, the State agreed to a commutation of applicant’s death sentence to a life sentence contingent on acceptance by the habeas court and this Court, of the parties’ agreed finding and agreed evidence that applicant is mentally retarded. The State reserved “the right to oppose a finding of mental retardation” if this agreement cannot be fulfilled. In relevant part, this agreement, in the form of a letter from the State to applicant’s lawyer, states: It is anticipated, understood, and expected that once your client [applicant] has plead guilty to the above five (5) offenses, and the same day and at the same proceeding in which your client pleads, and only in the event that your client pleads to the above, the state will agree and stipulate that your client is mentally retarded and that the state and yourself will present the [ha-beas court] with Agreed Findings of Fact and Conclusions of Law, along with agreed evidence of your client’s mental retardation to that end. The state will further agree and request that your client’s sentence of death be commuted to life. The parties hereto further understand and stipulate that this agreement is contingent upon [the habeas court’s] acceptance of Agreed Findings of Fact and Conclusions of Law and the Court of Criminal Appeals’ adoption of Findings of Fact and Conclusions of Law that find [applicant] to be mentally retarded. In the event that [applicant] does not plead guilty to the above referenced offenses or in the event [the habeas court] or the Court of Criminal Appeals does not accept or adopt the Agreed Findings of Fact and Conclusions of Law, the state reserves the right to oppose a finding of mental retardation. (Emphasis added). The agreed evidence between the State and applicant consists of Kartye’s 1985, Brownlee’s 1988, and Clark’s 1992 psychological evaluations of applicant which are discussed in the Court’s opinion. See Ex parte Modden, 147 S.W.3d 293, 296-97 (Tex.Cr.App. No. 74,715, delivered this date). Without hearing any live testimony, the habeas court apparently accepted these psychological evaluations and signed off on the parties’ agreed finding that applicant is mentally retarded. This finding tracks the AAMR and the Section 591.003(13) definitions of mental retardation. See Briseno, op. at 6, 8. But, none of these psychological evaluations state that they are based on the AAMR and the Section 591.003(13) definitions of mental retardation. And, neither Kartye, Brown-lee nor Clark have ever testified that their psychological evaluations and opinions are based on the AAMR and the Section 591.003(13) definitions of mental retardation. The agreed finding in this habeas proceeding that applicant is mentally retarded also is not the result of “determinations of credibility’ at an adversarial live hearing meant to test the truth of applicant’s mental retardation claim. More important, the parties’ agreed evidence does not take into account all of the evidence pertinent to applicant’s claim of mental retardation from applicant's 1985 trial and his 1992 retrial. See Briseno, at 8 (mental retardation determination must be based upon all of the evidence). For example, the parties litigated applicant’s mental retardation claim in an adversarial setting before a jury at applicant’s 1992 retrial where the State presented its own psychological expert who testified that applicant is not mentally retarded. It is fairly obvious from examining the 1992 record from applicant’s 1992 retrial that the jury rejected applicant’s claim that he is mentally retarded. See Ex parte Taylor, 101 S.W.3d 434, 440-45 (Tex.Cr.App.2002) (determining from an examination of the record what a jury found by a general not guilty verdict). Briseno, therefore, does not require this Court to accept the agreed finding that applicant is mentally retarded based on Kartye’s 1985, Brownlee’s 1988, and Clark’s 1992 psychological evaluations of applicant. This is not to say that these evaluations are irrelevant, but they should be considered with all of the other relevant evidence that completes the inquiry into applicant’s claim of mental retardation. Overwhelming evidence was presented at applicant’s 1985 and 1992 trials that applicant meets very few, if any, of the Briseno factors and that applicant is nothing like Steinbeck’s childlike Lennie. See Briseno, at 6, 8. This evidence indicates that applicant has been a violent criminal for most of his adult life. Though the evidence does indicate that applicant may have limited intellectual capabilities, it also indicates that no one considered applicant to be mentally retarded while he was growing up and that upon reaching adulthood applicant has been able to take care of himself both in and out of prison where (even before he committed this capital offense in 1984) he spent a good part of his adult life. The thrust of his mental deficiency evidence at both his 1985 and 1992 trials is that applicant’s mental deficiencies cause him to have poor impulse control and to be influenced by others for their own means, and that all of this is exacerbated by applicant’s frequent use of alcohol. But the evidence shows that many of the criminal offenses that applicant has committed during his life were planned and carried out all by himself. The evidence also indicates that applicant might even possess some leadership qualities. For example, a September 6, 1982, prison disciplinary report indicates that applicant was placed in Administrá-tive Segregation for inciting other inmates not to perform their work duties. On September 6, 1982, at approximately 3:15 P.M., I noticed that the trays in both the North and South Dishrooms were stacking up and not being washed. I then entered the dishroom and found that all of the inmates assigned to the Dishroom were refusing to wash any of the trays. These inmates were [applicant and five others]. These inmates stated that they were refusing to wash any dishes because they could not get any ice water in the Dishroom. [Applicant] was placed in Administrative Segregation in order to prevent the inciting of further work stoppages and to prevent the disruption of unit procedures. The evidence also indicates that applicant is capable of responding “coherently, rationally and on point to oral or written questions.” See Briseno, op. at 8. For example, an October 5, 1982, prison disciplinary report states: On October 5, 1982, at approximately 2:20 P.M. while A/L work force was cutting weeds, [applicant] was overheard to say “Fuck the boss and old motor mouth too.” Upon questioning [applicant] he again stated “Fuck you and the Captain because you’ll [sic] ain’t going to fuck with me.” I told [applicant] to go to work and he replied “If I get a case, I am not going to work and I am going to sue your ass.[”] [Applicant] was placed in adminsstrative [sic] segregation in order to prevent a disruption of unit procedures. The record further indicates that applicant presented no evidence at his 1985 trial that he was mentally retarded. Kar-tye’s 1985 psychological evaluation, which was admitted into evidence at that trial, does not conclude that applicant is “mildly mentally retarded.” And, Kartye never testified at applicant’s 1985 trial that applicant is “mildly mentally retarded.” Kar-tye never even used the term “mental retardation” at applicant’s 1985 trial. Kar-tye testified that applicant’s “limited intellectual resources” caused him to have “impulse control problems” but that applicant was also capable of acting deliberately. It is also significant that applicant filed a coherent pro se brief on direct appeal from his 1985 capital murder conviction. Applicant did claim that he was mentally retarded at his 1992 retrial after the United States Supreme Court had decided Penry v. Lynaugh which held that the then-existing Texas special issues framework failed to provide Penry’s jury with a vehicle to give mitigating effect to relevant mitigating evidence of Penry’s severe mental retardation. Two psychological evaluations of applicant (Brownlee’s 1988 evaluation and Clark’s 1992 evaluation), concluding for the first time that applicant is “mildly mentally retarded,” were admitted into evidence at applicant’s 1992 retrial. Before this no one had ever previously noticed applicant’s mental retardation. Brownlee did not testify at applicant’s 1992 retrial. According to Brownlee’s 1988 evaluation, applicant, unlike Steinbeck’s Lennie, enjoys torturing animals. This evaluation, among other things, states: [Applicant] said that he tortured animals often, either by burning them or hanging them. Upon exploration of the feelings associated with that, he had no affective statement, but he said he did like to see them suffer and squirm. Clark testified at applicant’s 1992 retrial. Among other things, she testified that she would place applicant “somewhere as far as functioning in the lower three to five percent of the population,” meaning apparently that, according to Clark, three to five percent of the population is “mildly mentally retarded” which interestingly is about three to five times more than that claimed by the defense expert in Atkins. See Atkins, 122 S.Ct. at 2245 n. 5 (forensic defense psychologist testified that mental retardation is “a relatively rare thing” affecting “about one percent of the population”). The State commented on this during closing jury arguments: Now, let’s talk about psychologists a little bit. Dr. Frankie Clark came up here, and I think she testified as to her honest opinion. She says he’s retarded. She says about 50 people out of 1,000 would be about in the same boat as the Defendant. So if there are 30,000 people in our town, about 1,500 are in the same boat as Willie Mack Modden. The State presented its own psychological expert at applicant’s 1992 retrial. This is the only psychological expert to testify on the issue of applicant’s mental retardation based on the AAMR and the Section 591.003(13) definitions of mental retardation. Mostly through the use of supported-by-the-evidence hypothetical, the State’s psychological expert testified at applicant’s 1992 retrial that applicant is not mentally retarded under the AAMR and the Section 591.003(13) definitions of mental retardation. Q. Okay. Now, Dr. Quijano, you know that one of the things in controversy in this trial is the issue of mental retardation. Could you tell the jury, please, sir, what is mental retardation? A. Mental retardation is a condition of an individual that has to meet three criteria, and all three must be met before the label of mental retardation can be legitimately given. Number 1, the individual must have a subaverage or below-average intellectual functioning as measured by an individually administered intellectual test, intelligence test. Number 2, which is very important, and that is, the individual must have an adaptive daily functioning skill that’s below average and that would require constant supervision. Number 3, that these two deficits, the intellectual as well as the adaptive deficits, must occur before age 18 to rule out victims of stroke and accidents with brain trauma. Q. Okay. Now, doctor, you mentioned functioning skills and adaptive behavior. What sort of things are you talking about? A. By adaptive skills, we mean the skills needed by an individual to live on a day-to-day basis. And those are-the questions asked are as follows: Are they able to take care of their own personal hygiene? Can they eat without assistance? Can they recognize hunger? Can they procure food for themselves? Can they cook simple meals? Can they recognize danger in that you don’t cross the street when a big truck is coming your way? Can they go to a store and negotiate a purchase? Can they know if they’re being cheated by somebody else? Can they take medicine when they are told to or when they need to? All of these things are considered adaptive skills, or some people call them daily skills of daily living. Q. Okay. Dr. Quijano, let me ask you this. Assume, please, sir, that the person-the Defendant that we’re concerned with here today, Willie Mack Modden-assume that there is evidence that the Defendant is able to play dominoes, to keep score; assume that he is able to play chess. Assume that he is able to play basketball. Assume that he is able to order materials and construct jewelry boxes out of matchsticks with designs. And assume that he is able to negotiate to sell those to people. Assume that he says, hey, buy this for your girl friend; I know you’ve got a girl friend or somebody you want to give this to; hey, will you give me $15; you won’t do that; will you give me 12. Assume, doctor, that we’re dealing with an individual who, by himself, stashed a gun and kept it for some period of time and until he needed it; then he went and got the gun, and he went and hid in some bushes outside of a convenience store. And he waited until near closing time, and he waited until the lady took the trash out. And he pulled the gun on her, and he made her go back in the store. And he made her give him the money. And then assume, doctor, that he made the woman pull her clothes off so that she would have to re-dress to avoid embarrassment before she summoned help to give him more time to get away. Assume, doctor, that this person, when they were incarcerated in TDC, learned the rules and regulations of the Texas Department of Corrections. And assume that if a guard did something that he didn’t approve of or that he felt was against the rules, that he would summon another guard. And if that guard was not able to answer his question, assume, doctor, that he would summon the supervisor, such as the sergeant, and that he would verbalize his complaint and say: this is against the rules; that man can’t do that to me. And assume, doctor, that this person were incarcerated in jail. And assume that they decided that they wanted to escape. And assume that they got with other inmates, and assume that they battered a hole in the wall. And assume that the Defendant said, I’m going to get out, and I’m going to burn down the courthouse so there won’t be records on me. And assume, doctor, that this person said, I’m then going to go kill the people that helped put me in the penitentiary in the first place.[] And assume, doctor, that tins person were [sic] offended by somebody. Assume somebody hit this person when they were in the penitentiary. And assume that they procured razor blades, and assume that they melted them into the handle of a toothbrush. And assume that they waited until the next day when the offending person was in the shower and had their face lathered up. And assume that this person then went in and cut that person’s throat. Doctor, are these things consistent with a mentally retarded person? A. No, they are not. Q. Can you tell me why they’re not? A. The hallmark of a mentally retarded person is simplicity of thinking; that they can maybe handle one thing at a time, maybe two. The mentally retarded people used to be called the simpleminded. These behaviors that you have described are very complex behaviors. They require multiple steps in the mind. They require that you-that you keep four or five, six different things in mind and then manipulate them intellectually and mentally. Those are complex acts. The planning, the forethought, the anticipation of consequences, the thinking on the feet; all of those are complex mental activities that a true mentally retarded person, by definition, cannot do.[] This expert also provided several explanations on why applicant’s IQ test scores contained in his penitentiary records ranged from 57 to 83 before he got into this current trouble. Q. Okay. Now, in this record where it shows the Defendant’s age of 18, which is marked as State’s Exhibit 26, it shows an IQ score of 57? A. That’s correct. Q. Okay. Now, in this record, which is State’s Exhibit Number 28, and it shows the Defendant’s age as 26. What IQ score does it show? A. It shows 83. Q. Now, I will-these records are here, doctor, if you need to look at them further to explain that; but I’d like to discuss that with the jury and-how do you account or can you account, sir, for the wide range in variations of IQ scores in the 57 range all the way up to 83. What’s the deal? A. Okay. The-given this information, if I were asked to account for that-assuming that the tests were administered properly, and the only thing has changed would be the motivation of the person taking the test. If you are tested before your trial, it is to your best interests to test down. If you are tested after the trial, once you’re in prison where you may be wanting a better job assignment, where you may be wanting to go to school, or where you may be wanting a more free living arrangement-the better you are off, the better your chances are because if you are retarded in a prison, then your movements are limited. You’re supervised more. You cannot get good jobs and so on and so forth. So one possibility is that you are now-you are no longer playing to the problem of facing charges; that is all behind you, and you are testing better and maybe more accurately. However, there are prisoners who would say, I tested down, because these people may want to be assigned to Beto I, which is closer to their home, and that is where the mentally retarded program is; and you test down. Or you may want to have other programs available for the mentally retarded that that is not available for general population. And people do that all the time. They get to the MR program; and they say, well, this is not what I expected; give me another test. And they test higher, and we kick them out. Q. Dr. Quijano, let me ask you this. I believe that the test where the IQ score is 83 shows an interview on September the 10 th, 1974. Now, would there be any change-is there any reason for a person to change their attitude toward testing between 1974 and now in the penitentiary system to your knowledge? A. Yes. Q. Could you explain that to the jury, please, sir? A. Before 1984, when I went back to the system to implement the federal court orders, there was no specialized program for the mentally retarded, and there was no special arrangement for them. You were essentially treated, by the system the way the system thought mentally retarded people should be treated. And the motivation at that time was to test up because you have to compete with other inmates for better jobs. These days there is less motivation for that. The motivation now, depending on what you want, is to test down because you have a richer environment in a specialized program. Our mentally retarded program is a very expensive program because you have case managers and music therapy and occupational therapy. You have your own gymnasium. • You have your own schools. It’s a lot richer program. You have basic janitorial skills training and job programs. So the motivation has shifted in the prison, depending on what you want to accomplish. This expert also testified that a person cannot fake a higher IQ score “because you either know the answer or you don’t.” Q. I’ve got a couple of things, Dr. Qui-jano, that I want you to look at. I’m going to try to be brief on this. This is Dr. Clark’s report, I believe. And we’ve got Dr. Kartye’s test here. And this, I believe, is a psychiatric evaluation by Dr. Brownlee. Okay? First, I want to talk about the two tests which have scores on them. Now, doctor, I’ll ask you to-well, there’s a date on this. We don’t have to assume anything. Examined 1-26-1985; examination, 7-11-92. Now, you mentioned performance IQ. And I believe that Dr. Kartye’s report reflects a performance IQ of 74, and Dr. Clark’s report reflects a performance IQ of 65. Is this, the more recent test, lower? A. Yes. Q. What-how do you square that up? A. Well, two possibilities. The most recent test is more suspect than the previous test for two reasons. Number one, a person cannot fake correct answers because, if you give the correct answers, you obviously know the correct answers. So it is-if you score high-if you’re asked questions, and you gave the answers, you obviously know at this level. It is much easier to say, I don’t know. It’s easier to fake lower scores than to fake higher scores. You cannot fake higher scores because you either know the answer or you don’t. You can fake a lower score by saying, I don’t know, or if you don’t have enough motivation to complete the test, or if you’re not trying too hard. The second possibility in which our profession is warned against is testing when one is in trouble. You must always suspect what we call malingering; that is, an exaggeration of symptoms when one is in trouble because of our human nature to protect ourselves. And so these scores can be explained by those two possibilities. ' The State’s expert also testified that his opinion about applicant’s mental capacity was based in part on applicant's prison records before he got into this current trouble and that any testing of applicant after he got into this trouble would be of no benefit. Q. Okay. Do you have sufficient information at your disposal to form an opinion about him and his mental capacity? A. Yes, I do. Q. Okay. And you have how many years’ worth of penitentiary records? A. The Defendant’s records? Q. Yes, sir. A. Not mine. Okay. Four tenures in TDC. Q. Okay. A. I don’t know the exact number of years. Q. And, doctor, do you have at your disposal the test results of other psychologists? A. Yes, I do. Q. Would it be of benefit to you to be able to test the Defendant? A. At this late stage it would not be of benefit to me or anybody to test him because of the motivation factor. A person that’s in trouble-and the answers are now questionable, and we can repeat this over and over again, and we’ll get different test results, depending on what the situation is. The best evidence that applicant is not mentally retarded came from applicant himself when he testified at his 1985 trial. Applicant testified at the punishment phase of his 1985 trial how he robbed a convenience store clerk and stabbed her 16 times in the face and neck while she begged for her life and implored applicant to consider her three children. Applicant later, matter-of-factly, described to several friends how he murdered the sobbing and terrified victim. Applicant testified that he decided to kill the victim before he actually killed her (meaning that he “deliberately” killed her). He testified that he killed the victim because he did not want to leave any witnesses. Applicant’s testimony from the punishment phase of this trial also indicates that after the crime applicant was smart enough to destroy evidence and to “artfully dodge” police questioning about his involvement in the crime. Applicant also testified about his plan to take a hostage and escape from the county jail. The State’s psychological expert testified at applicant’s 1992 retrial that, in forming opinions about a person’s mental ability, it is also important “to look at what the person actually does” and not to make judgments “about a person’s character on the basis of test results only.” Q. Doctor, is it possible to look at what someone actually does and use that as a basis for an opinion as to that person’s mental ability or that person’s future behavior, just as you could use test results? A. Well, it’s more important to look at what the person actually does. And it is not professional or ethical to make a judgment about a person’s character on the basis of test results only. Responding to Kartye’s psychological testimony, the State argued during closing jury arguments at applicant’s 1985 trial: Then you have to go toward the glimmer of hope that you can get somebody sidetracked on some collateral issue. As it turned out, it was totally insignificant in answering those two questions. And that is when in desperation, Joe Kartye was called to testify. You know, Joe Karty [sic]. I like Joe Karty [sic]. He’s a likeable type person. I didn’t agree with him on some things. Some things I don’t disagree with him on. For instance, the report that you have shows that [applicant] has a low I.Q. and he is easy led [sic] and he strikes out and he acts impulsively. And I believe a lot of that. I don’t think that he is the most intelligent person in the world, but I think he is smarter than Mr. Kartye gives him credit for being. And you saw him on the witness stand. On direct examination and cross examination and on many occasions he corrected what his attorney said. He would back up and re-phrase what I said or .whatever the situation was. This man is very alert as to what was going on, and he knows the consequences of what he was doing, and that is why we are here today on the issues of deliberate and probability. Considered in its entirety, the record does not support the habeas court’s finding that applicant is mentally retarded. See Briseno, op. at 12 (this Court’s review of a trial court’s findings of fact and conclusions of law on a mental retardation claim “remains the same as it has always been on habeas corpus applications,” and this Court may reject the habeas court’s findings that the record does not support). The evidence overwhelmingly supports a finding that applicant is not mentally retarded, and the contrary opinions of applicant’s psychological experts can politely be described as “incredulous as a matter of law.” See Atkins, 122 S.Ct. at 2246 (noting that the dissenters in the Virginia Supreme Court rejected the state’s expert opinion that Atkins possesses average intelligence as “incredulous as a matter of law”). The Court’s opinion makes much of the habeas court’s pre-Penry finding from a 1988 habeas proceeding that applicant is “mentally retarded” and of this Court’s 1992 opinion from that proceeding deciding that applicant’s “evidence of mental retardation” entitled him to a new trial under Penry, The record does indeed reflect that in 1988 applicant filed a habeas corpus application claiming, among many other things, that the execution of a mentally retarded person would violate the Eighth Amendment and that this very issue was then pending in the United States Supreme Court in Penry. The record also reflects that the habeas court conducted a hearing on this habeas corpus application in November 1988. At this hearing Kar-tye testified on behalf of the State. Kar-tye actually used the term and, testified for the first time that applicant was suffering from, “mild mental retardation.” Q. [STATE]: Dr. Kartye, you’re the same Dr. Kartye who previously examined [applicant], were you not? A. [KARTYE]: Yes. Q. According to your examination, did you make a determination as to his level of intelligence? A. Yes, I did. Q. And do you recall what that was? A. Mild mental retardation. Kartye also testified on direct examination that applicant was capable of acting “deliberately.” Q. [STATE]: From having examined [applicant], Doctor, I would ask if whether or not you feel he could ever act deliberately? A. [KARTYE]: Yes, I feel that he can. On cross-examination, Kartye testified that applicant could adequately function outside an institutional environment but not without endangering himself or others. Q. [DEFENSE]: Dr. Kartye, in the report that you provided during the trial of this case in 1985, you stated and I quote, “It would appear that [applicant] lacks cognitive and behavioral controls necessary to effectively regulate his behavior.” Do you recall that statement? A. [KARTYE]: Yes, I do. Q. Do you believe that that’s the truth? A. Yes. Q. And with regard to your testimony here this morning, did I understand you to state correctly that most mildly retarded persons can function adequately outside an institutional environment? A. Yes, they can. Q. Do you believe that [applicant] can? A. He has functioned outside the environment all his life until he was arrested. Q. You’re aware of his criminal record, aren’t you? A. Yes. Q. Do you think he could function outside a structured environment without endangering himself or others? A. No. On re-direct examination, Kartye testified that applicant’s inability to function outside of a structured environment without hurting other people was because of his past criminal history and not because of his degree of mental retardation. Q. [STATE]: Dr. Kartye, just one question. You said a minute ago that, in your opinion, [applicant] could not function outside-in society without doing harm to himself or others; is that correct? A. [KARTYE]: That is correct. Q. Is that based-do you base that opinion on his degree of mental retardation or his past criminal history? A. His past criminal history. Brownlee testified at the November 1988 habeas hearing on applicant’s behalf. Brownlee testified that applicant is mentally retarded which causes applicant not to have the intellectual capability to act “deliberately” or “intentionally” or of being “sane.” For example, Brownlee testified how applicant’s mental retardation causes applicant not to have the intellectual capability to be “sane” in the sense of knowing the difference between right and wrong and that for applicant “hurting another person would be like soiling his pants.” Q. [STATE]: Why do-why would he try to hide his wrong if he didn’t know the difference? A. [BROWNLEE]: Because there’s a higher level of wrong that we imply to being caught in doing something bad. You know, there is a certain degree of shame at messing your pants, and I’m sure that, you know, [applicant] would have that shame if he soiled his pants. And in his mind hurting another person would be like soiling his pants. It’s a thing that causes shame, but it’s not something that you feel so bad about because you understand the long-term implications of death, that you understand the impact on other people. Like he told me in my interview, he made [the victim] go to Heaven, and people should be happy about that. That’s an absurd assumption for a person who has a higher degree of intelligence. Q. So you really think that he thinks he did nothing wrong, and they should be happy because he made her go to Heaven? A. That’s what he told me, yeah. Brownlee also testified that Kartye’s psychological report was “insufficient to help [him] in any way.” Q. [DEFENSE]: Referring you back to Dr. Kartye’s report, based on your knowledge and experience as a psychiatrist, do you have an opinion as to the overall quality of his examination of [applicant]? A. [BROWNLEE]: If this was a report prepared by a psychologist that I would ask-I’d have him redo it because it’s insufficient to help me in any way. The State also presented several police witnesses who testified that, during their numerous interactions with applicant prior to his 1985 trial, they did not notice applicant’s mental retardation. One of these witnesses apparently surprised the defense when he testified that he has “personal knowledge of how a mentally retarded person might” act. Q. [DEFENSE]: Have you had experience before in your work with mentally retarded defendants? A. [MORRIS]: Would you- Q. Have you ever-in the course of your investigation as an officer of the Department of Public Safety, have you ever dealt with mentally retarded defendants? A. Not that I know of, sir. Q. So you don’t-you don’t have any personal knowledge of how a mentally retarded person might interact with you as opposed to a person of normal intelligence? A. Yes, I do. Q. And what is that based on? A. I have a son that’s [sic] mentally retarded. Q. But you’ve never dealt with any mentally retarded defendants? A. No, I have not. Q. And you had no reason in your discussion with [applicant] to think that he was mentally retarded? A. I do not. [DEFENSE]: Pass the witness. To the extent that the Court’s opinion suggests that the habeas court’s finding in the 1988 habeas proceeding that applicant is “mildly” mentally retarded is dispositive or collaterally estops a consideration of all of the other evidence, it is significant to point out that the habeas court made this finding before the United States Supreme Court decided Penry. This finding, therefore, was not essential to the habeas court’s determinations in the 1988 habeas proceeding, and the State did not need to fully and fairly adjudicate the issue of applicant’s mental retardation at this time. Cf. Ex parte Watkins, 73 S.W.3d 264, 267 (Tex.Cr.App.2002) (collateral estoppel bars relitigation of “specific and discrete facts that have been fully and fairly adjudicated”); Johnston v. American Medical International, 36 S.W.3d 572, 576 (Tex.App.-Tyler 2000, no writ) (collateral estoppel bars relitigation of facts that were fully and fairly adjudicated and essential to the judgment in the first action). For these reasons, this Court’s 1992 opinion granting applicant habeas corpus relief also is not dispositive of whether applicant is mentally retarded. That the issue of applicant’s mental retardation was not essential to the habeas court’s determinations in the 1988 habeas proceeding is underscored by the habeas court’s recommendation to deny habeas corpus relief despite its finding that applicant is “mildly” mentally retarded. The issue of applicant’s mental retardation was not fully and fairly adjudicated until applicant’s 1992 retrial. There the State litigated this issue with its own expert who is the only psychologist to express an opinion on applicant’s mental retardation based on the AAMR and the Section 591.003(13) definitions of mental retardation that this Court adopted in Briseno. What this case really boils down to is whether this Court should stand in the way of the bargain the parties made in this habeas proceeding. At this point in the judicial process of this 20-year-old case, I do not believe that this Court has (or should exercise) the power to effectuate this bargain through the vehicle of a mental retardation claim which the record does not support. Just as executing a truly mentally retarded person would not advance any “evolving standards of decency that mark the progress of a maturing society,” allowing the parties to use a mental retardation claim not supported by the record as a bargaining chip to dispose of this case would not advance any evolving standards of decency either. See Atkins, 122 S.Ct. at 2247. On the contrary, effectuating this bargain based on an unsubstantiated mental retardation claim would promote a sort of “devolving standard of decency” that marks a society indifferent to the dignity of the victim whom applicant so brutally murdered. Cf. Atkins, 122 S.Ct. at 2247 (basic concept underlying Eighth Amendment jurisprudence “is nothing less than the dignity of man”). I respectfully dissent. APPENDIX This Appendix contains the following: Reporter’s Record at 2169-2171 (Applicant’s direct examination outside the jury’s presence at the guilt/innocence phase of his trial on the issue of the voluntariness of his written statement). Reporter’s Record at 2171-72 (Applicant’s cross-examination outside the jury’s presence at the guilt/innocence phase of his trial on the issue of the voluntariness of his written statement). Reporter’s Record at 2483-2634 (Applicant’s direct examination in the jury’s presence at the punishment phase of his trial). Reporter’s Record at 2676-2743 (Applicant’s cross-examination in the jury’s presence at the punishment phase of his trial). WILLIE MACK MODDEN the defendant, was called as a witness in his own behalf and, having been duly sworn by the Court, testified as follows to questions propounded to him by Counsel. DIRECT EXAMINATION QUESTIONS BY MR. ASKINS: Q Mr. Modden, is this your signature here? A Yes, sir. Q Do you recall down in Kirbyville, Texas, when you went before Mr. C.R. Dough-orty, Justice of the Peace down there? A Yes, sir. Q Do you remember him giving you this warning? A Yes, sir. Q That’s as to State’s Exhibit Forty? A Yes, sir. Q Now, what is marked State’s Exhibit Forty-one — excuse me. Forty-two. Do you recognize this to be your signature? A Yes, sir. Q Do you remember Judge Hulen McClure here in Angeline County, 15th day of October, 1984, 2:28 P.M. giving you this Magistrate’s warning? A Yes, sir. Q And did you give both of those — Did you hear both of those clearly and understand them— A Yes, sir. Q —when they were given to you? And you heard Mr. Goodwin testifying about what is marked State’s Exhibit Forty-three, but which is not yet admitted. Now, you had an opportunity to read over this statement in the past on occasions? A Yes, sir. Q Did you read it that day before you signed it? A Yes, sir. Q Did anybody force you to sign this statement? A No, sir. Q Did you give it voluntarily? A Yes, sir. Q Were you in threat of your life or freedom? A Freedom. Q Well— A I wasn’t threatened. Q You were in jail at the time, weren’t you? A Yes, sir. Q Nobody was threatening you, were they? A No, sir. Q Or were they? A No, sir. Q Did you have a lawyer with you at the time that you signed these papers? A No, sir. Q But you had not asked for one either, had you? A No, sir. Q Or had you? A No, sir. Q All right. But are you telling the court you signed all four pages of that voluntary statement that is dated October 15, 1984, freely and voluntarily and by your own choice? A Yes, sir. Q Without anybody forcing you to, but because you wanted to? A No, sir. Q Is that correct? A Yes, sir. MR. ASKINS: All right. Pass the witness. CROSS EXAMINATION QUESTIONS BY MR. GOODWIN: Q Mr. Modden, again, all of these, you understood what your rights were, did you, sir? A Yes, sir. Q And all of these things that were said to you, you knew what you were talking about, didn’t you? A Yes, sir. Q In the statement, Willie Mack, there was given voluntarily, wasn’t it? A Yes, sir. MR. GOODWIN: I have no further questions, Judge. MR. ASKINS: We have no further questions, Your Honor. THE COURT: You may step down. Any further witnesses? MR. ASKINS: No, Your Honor. THE COURT: Okay. I will make a finding that what is marked as State’s Exhibit Number Forty-three was made freely and voluntarily. MR. ASKINS: Yes, sir. Your Honor, as to one Magistrate’s warning, I fail WILLIE MACK MODDEN the defendant, took the witness stand in his own behalf and, having been first duly sworn by the Court, testified as follows to questions propounded to him. DIRECT EXAMINATION QUESTIONS BY MR. ASKINS: Q State your name, please. A My name is Willie Mack Modden. Q Mr. Modden, how old are you? A Thirty-six. Q Where were you born? A Honey Island. Q Where is Honey Island, Texas? A Oh, over there close to Kountze, Texas. Q Who is your natural mother? A Dosie May Young. Q Was that the lady who just testified? A Yes, sir. Q Do you call another woman momma? A Yes, sir. Q Who is that lady? A Rosalie Modden. Q And who raised you? A Rosalie Modden. Q And there is no question about — let me stop right there and ask you a question. Do you understand you are not required to testify? A Yes, sir. Q You understand that you are on the stand now and you have commenced testifying? A Yes, sir. Q You understand that you are available for cross examination by District Attorney Gerald Goodwin or anybody substituting for him in this case? A Yes, sir. Q Do you realize that this jury has found you guilty of the offense of capital murder? A Yes, sir. Q And you do understand the range of punishment for this case, do you not? A Yes, sir. Q Do you understand that range of punishment to be life or death? A Yes, sir. Q Do you understand that if you testify, what you say will be considered by this jury to the degree that they are willing to consider it? A Yes, sir. Q Do you understand that they are not required to give your testimony any more or any less value, as far as probative value, than any other witness that has taken the stand before you or any witness who might take the stand after you in this case? A Yes, sir. Q Is it still your desire to go forward and testify? A Yes, sir. Q All right, sir. And I believe you testified that Rosalie Modden raised you. Is that right? A Yes, sir. Q And do you recall when you moved from Honey Island? A Well, sir, I was young. About the first grade, I think. Q And you heard your momma’s testimony. Are you in agreement, from what you’ve been told in your childhood, that she basically turned you over to— A I agreed to it. Q Sir? A Yes, sir. Q What was my question? A I agree about she turning me over to my auntie. Q All right, sir. Listen to my question very carefully— A Yes, sir. Q —and answer them after I get through asking them. A Yes, sir. Q Did Rosalie Modden raise you? A Yes, sir. Q Who was her husband? A L.C. Modden. Q Did you ever live in your childhood anywhere other than Honey Island? A Conroe. Then I moved from Conroe to Silsbee. Q Were you always with Rosalie Mod-den’s family? A Yes, sir. Q Did you ever live with your natural mother, Dosie May Young? A Yes, sir, but not — you know, live with her, you know, or stay with her. You know, my auntie would take me up there. Q Did Rosie Young live with her husband? A Rosalie Modden? Q Modden. I’m