Ex parte Moore (470 S.W.3d 481, 2015)

OPINION

Johnson, J.,

delivered the opinion of the Court

in which Keller, P. J., Meyers, Keasler, Hervey and Richardson, JJ., joined.

In 1980, appellant was convicted of capital murder and sentenced to death for fatally shooting a seventy-year-old grocery clerk, James McCarblé, in Houston, Texas, while committing or attempting to commit robbery. See Tex. Penal Code Ann. § 19.03(a). We affirmed the 1980 conviction and sentence. Moore v. State, 700 S.W.2d 193 (Tex.Crim.App.1985). Following a grant of federal habeas corpus relief, the trial court held a new punishment hearing in February 2001. Appellant again received a death sentence. We affirmed the trial court’s judgment on direct appeal. Moore v. State, No. AP-74,059, slip op., 2004 WL 231323 (Tex.Crim.App. Jan. 14, 2004) (not designated for publication).

In this initial writ application challenging his 2001 punishment retrial and death sentence, applicant raises forty-eight claims for relief. See Tex. Code Crim. ProC. Ann. art. 11.071. In January 2014, the habeas judge held a two-day evidentia-ry hearing on applicant’s first claim for relief — the allegation that he is intellectually disabled and therefore exempt from execution under the Supreme Court’s holding in Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

Following the evidentiary hearing, the parties filed proposed findings of fact and conclusions of law. Applicant’s proposed findings and conclusions were contained in a document entitled, “Addendum Findings of Fact and Conclusions of Law on Claims 1-3” (Addendum Findings). Despite the document’s caption, applicant’s proposed findings and conclusions addressed only his Atkins claim (i.e., his first claim for relief). The State’s proposed findings of fact and conclusions of law addressed all of applicant’s alleged grounds for relief.

The habeas court signed applicant’s proposed Addendum Findings. The Addendum Findings applied the definition of intellectual disability presently used by the American Association on Intellectual and Developmental Disabilities (AAIDD), concluded that applicant is intellectually disabled under that definition, and recommended that we grant relief on his Atkins claim. The Addendum Findings also concluded that applicant had established by a preponderance of the evidence that he is intellectually disabled under the diagnostic criteria stated in the fourth and fifth editions of the American Psychiatric Association’s (APA’s) Diagnostic and Statistical Manual of Mental Disorders (DSM), i.e., the DSM-IV and DSM-V.

The habeas court also signed the State’s proposed findings of fact and conclusions of law after making certain handwritten alterations to the final page. Through its alterations, the habeas court: (1) indicated that applicant’s grounds for relief should be granted in part and denied in part; and (2) adopted the State’s proposed findings and conclusions concerning claims four through forty-eight, as well as its recommendation that' we deny relief concerning those claims. The habeas court made no findings or ■ Conclusions regarding applicant’s claims two and three.

We filed and set the case to address applicant’s Atkins allegation. We now deny relief on all of applicant’s claims.

In Atkins, the Supreme Court determined that the execution of intellectually disabled individuals violates the Eighth Amendment, but left it to the States to develop appropriate ways to enforce the constitutional restriction. See Atkins, 536 U.S. at 317, 320, 122 S.Ct. 2242. In Ex parte Briseno, citing the absence of legislation to implement Atkins’s mandate, we adopted the definition of intellectual disability stated in the ninth edition of the AAMR manual, published in 1992, and the similar definition of intellectual disability contained in section 591.003(13) of the Texas Health and Safety Code. See Ex parte Woods, 296 S.W.3d 587, 589 & n.4 (Tex.Crim. App. 2009); Briseno, 135 S.W.3d at 7.

Because our Legislature has not enacted legislation to implement Atkins’s mandate, we continue to follow the AAMR’s 1992 definition of intellectual disability that we adopted in Briseno for Atkins claims presented in Texas death-penalty cases.' See In re Allen, 462 S.W.3d 47, 51-52 (Tex.Crim.App.2015); Woods, 296 S.W.3d 587, 589. Thus, to demonstrate that he is intellectually disabled for Eighth Amendment purposes and therefore exempt from execution, an applicant must prove by a preponderance of the evidence that: (1) he suffers from significantly sub-average general intellectual functioning, generally shown by an intelligence quotient (IQ) of 70 or less; (2) his significantly sub-average general intellectual functioning is accompanied by related and significant limitations in adaptive functioning; and (3) the onset of the above two characteristics occurred before the age of eighteen. See Ex parte Cathey, 451 S.W.3d 1, 19 (Tex. Crim. App. 2014); Ex parte Sosa, 364 S.W.3d 889, 894 (Tex. Crim. App. 2012); Briseno, 135 S.W.3d at 7 n. 25.

The habeas judge therefore erred by disregarding our case law and employing the definition of intellectual disability presently used by the AAIDD, a definition which notably omits the requirement that an individual’s adaptive behavior deficits, if any, must be “related to” significantly sub-average general intellectual functioning. The habeas court reasoned that, in Briseno, we derived our legal test for intellectual disability in capital cases from the AAMR’s 1992 definition of intellectual disability. Because the' AAMR’s and APA’s conceptions of intellectual disability and its diagnosis have changed since Atkins and Briseno were decided, the habeas court concluded that it should use the most current position, as espoused by AAIDD, regarding the diagnosis.of intellectual disability rather than the test that we established in Briseno.

It may be true that the AAIDD’s and APA’s positions regarding the diagnosis of intellectual disability have changed since Atkins and Briseno were decided. Indeed, we have recently discussed the subjectivity surrounding the medical diagnosis of intellectual disability and some of the causes for that subjectivity. See Cathey, 451 S.W.3d at 10 & nn. 22-23. But although the mental-health fields and opinions of mental-health experts inform the factual decision, they do not determine whether an individual is exempt from execution under Atkins. See id. at 9-10 (stating that we must apply our own judgment on the appropriate ways to enforce the ultimately legal prohibition on executing intellectually disabled offenders). The decision to modify the legal standard for intellectual disability in the capital-sentencing context rests with this Court unless and until the Legislature acts, which we have repeatedly asked it to do. See Ex parte Hearn, 310 S.W.3d 424, 428 (Tex. Crim. App. 2010); see, e.g., Allen, 462 S.W.3d at 51-52. We conclude that, at this juncture, the legal test we established in Briseno remains adequately “informed by the medical community’s diagnostic framework.” See Hall v. Florida, —- U.S. -, 134 S.Ct. 1986, 2000, 188 L.Ed.2d 1007 (2014).

Regarding Briseno’s first prong, “general intellectual functioning” is “defined by the [IQ] ” and “obtained by assessment with a standardized, individually administered intelligence test.” . See Ex parte Hearn, 310 S.W.3d 424, 428 n. 7 (Tex.Crim.App.2010). There is a measurement error of approximately five points in assessing IQ, which may vary from instrument to instrument. Id. at 428. Therefore, when determining whether an applicant has met Briseno’s first prongs we consider the fact that any IQ score could actually represent a score that is five points higher or five points lower than the score that he actually obtained. See id.

In Cathey, we examined whether mental-health experts or factfinders should adjust IQ scores for the “Flynn Effect” in making a determination of intellectual disability under Atkins. See Cathey, 451 5.W.3d at 14. We concluded that, although factfinders may consider the concept of the Flynn Effect in assessing the validity of a score obtained ón a now “outmoded” or “outdated” version of an IQ test, they may consider that effect only in the way that they consider an IQ examiner’s assessment of malingering, depression, lack of concentration, etc. Id. at 5, 18 n. 54 (explaining that “outmoded” in this context “means simply that the test [at issue] was designed and normed several years earlier” and “not that thére was a newer, ‘better’ test available” at the time). We stated that the IQ test score itself may not be changed. Id- at 18. -In analyzing whether applicant’s general intellectual functioning . is significantly sub-average, the habeas court therefore, erred by subtracting-points from applicant’s IQ scores for the Flynn Effect and considering both applicant’s unadjusted and Flynn-Effect-adjusted IQ scores.

For purposes of the Eighth Amendment, “adaptive behavior” refers to the ordinary skills that are required for people to function in their everyday lives. Id. at 19. We have cited with approval the AAIDD’s grouping of adaptive behavior into three areas (conceptual skills, social skills, and practical skills) for purposes of making a clinical diagnosis of intellectual disability. See Hearn, 310 S.W.3d at 428. Limitations in adaptive behavior can be determined by using standardized tests. See id. We have also recognized the APA’s position, expressed in the DSM-IV, that for purposes of clinical diagnosis, a “significant limitation” is defined by a score of at least two standard deviations below either (1) the mean in one of the three adaptive behavior skills areas or (2) the overall score on a standardized measure of conceptual, social, and practical skills. See id. Although standardized tests are not the sole measure of adaptive functioning, they may be helpful to the factfinder, who has the ultimate responsibility for determining intellectual disability in the Atkins context. See id.

In the Eighth Amendment context, it is not sufficient for an applicant to establish by a preponderance of the evidence that he has significantly sub-average general intellectual functioning and significant limitations in adaptive functioning. See id. An applicant must also demonstrate by a preponderance of the evidence that his adaptive behavior deficits are related to significantly sub-average general intellectual functioning rather than some other cause. Cf. id. (stating that the applicant must show that his adaptive deficits were related to significantly sub-average general intellectual functioning rather than a personality disorder); Ex parte Blue, 230 S.W.3d 151, 163-64 (Tex. Crim. App. 2007) (determining that the applicant had not made a prima facie case concerning adaptive deficits because his expert conceded that learning disabilities or an impoverished family background, or both, may have been responsible for applicant’s alleged deficit). The habeas court in this case failed to make the relatedness inquiry-

In making the relatedness determination, the factfinder may consider the seven evidentiary factors that we developed in Briseno:

• Did those who knew the person best during the developmental stage — his family, friends, teachers, employers, authorities — think he was [intellectually disabled] 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, 135 S.W.3d at 8-9. We look to the entirety of the record before us in an Atkins inquiry. See Cathey, 451 S.W.3d at 26-27 (stating that factfinders should “consider all possible data that sheds light on a person’s adaptive functioning, including his conduct in a prison society, school setting, or ‘free world’ community”). In addition, we “consider all of the person’s functional abilities,” including “those that show strength as well as those that show weakness.” See id. at 27. The habeas court therefore additionally erred to the extent that it found that applicant’s prison records were “not appropriate tools by which to exclude intellectual disability in capital murder cases” and considered only weaknesses in applicant’s functional abilities. See id.

In failing.to make the relatedness inquiry, the habeas judge’s factual findings and legal conclusions left the second prong of the Briseno test unresolved. See Ex parte Flores, 387 S.W.3d 626, 634-35 (Tex. Crim. App. 2012). (stating that the rationale for the deference we generally accord to habeas courts disappears when the factual findings fail to resolve the necessary factual issues). In addition, our independent review of the record reveals that it does not support the habeas judge’s findings or conclusions concerning applicant’s Atkins claim. See id. (noting that the rationale for deference also disappears when the record does not support the ha-beas court’s findings). In short, the habe-as judge appears to have either not considered, or unreasonably disregarded, a vast array of evidence in this lengthy record that cannot rationally be squared with a finding of intellectual-disability. Cf. Sosa, 364 S.W.3d at 894. For these reasons, we do not adopt the habeas court’s findings and conclusions regarding applicant’s Atkins claim, but instead assume our role as the ultimate factfinder in this case. See Flores, 387 S.W.3d at 634-35; Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008).

We hold that applicant has not established by a preponderance of the evidence that he is intellectually disabled under Atkins and Briseno. Accordingly) applicant is not exempt from the death penalty, and we deny him relief on his first ground.

I. Factual and Procedural Background

The lengthy factual and procedural history of applicant’s case is relevant to our adjudication of his Atkins claim and provides context for the testimony elicited by the parties at his 2014 evidentiary hearing.

A. Applicant’s 1980 Capital Murder Trial

The evidence at applicant’s 1980 trial showed that, on April 25, 1980, Anthony Pradia and Willie Albert “Ricky” Koonce visited applicant at Betty Nolan’s house, where applicant lived when he was not staying with his girlfriend, Shirley Carmen. Pradia testified that he, Koonce, and applicant each needed money for car payments. While the three men were playing dice, Koonce suggested that they commit a robbery, and Pradia and applicant agreed. Applicant provided the weapons for the robbery, specifically, a shotgun and a .32 caliber pistol. Applicant and Pradia hid the weapons in the trunk of Koonce’s car. The three men then drove around various areas of Houston in. Koonce’s car, looking for a place in which to commit the robbery.

After taking turns casing the Birdsall Super Market, the three men settled on it as the place in which they would commit the robbery and negotiated. how they would divide the proceeds. Because they were using his car, Koonce wanted a larger share of the proceeds. After some argument, Pradia and applicant agreed that they would each pay Koonce $200 from their shares. The men then discussed their roles in the robbery. They agreed that Koonce would enter the courtesy booth and take the money that was inside. Applicant would carry the shotgun and position himself at the courtesy booth so that he could guard the booth and watch the store’s front entrance. Pradia would carry the pistol and empty the checkout registers.

The three men then entered the store. Pradia entered first, with the pistol in his pants. Koonce entered next. Applicant entered last. The shotgun he was carrying was obscured by two plastic bags. Applicant and Pradia wore wigs. Applicant also wore sunglasses.

Applicant and Koonce approached the courtesy booth, which was staffed by store employees McCarble and Edna Scott. Koonce entered the booth, told McCarble and Scott that they were being robbed, and demanded money. Applicant, who by this time had removed the plastic bags from the shotgun, pointed the weapon at McCarble , and Scott through the booth’s window., When Scott screamed that the store was being robbed, applicant pointed the shotgun at McCarble, looked down the barrel, and shot him in the head. McCar-ble died instantly.

Applicant, Pradia, and Koonce ran from the store and .got back into Koonce’s car, where applicant stated that he had shot the man in the booth. The men fled the scene. Koonce drove back to Nolan’s house to drop applicant off and to allow Pradia to retrieve his car. The men then split up. Applicant spent the night of the offense at Nolan’s house.

Witnesses provided a license-plate number and descriptions of the getaway vehicle and perpetrators, which quickly led Houston Police Department (HPD) homicide detectives to arrest Koonce. While searching Koonce’s vehicle, officers discovered Pradia’s wallet and identification, which Pradia had inadvertently left behind. Following Koonce’s arrest, Pradia turned himself in. Based on information' in Koonce’s and Pradia’s statements, detectives obtained a warrant for applicant’s arrest. During a consensual search of Nolan’s house, investigators found a'shotgun hidden between the mattress and box springs of applicant’s bed.

Applicant, who left Houston .on the day after Koonce gave his statement, remained at large. HPD detectives were unable to ascertain applicant’s whereabouts until May 2, 1980, when they received a tip that he could be found at his grandmother’s residence in Louisiana. On May 5, 1980, ten days after the offense, Louisiana authorities arrested applicant at his grandmother’s house pursuant to a fugitive warrant. Incident to the arrest, Louisiana officers discovered a small suitcase containing a pistol and $612 in cash. Applicant, who previously had a full head of hair, had shaved his hair down to the scalp.

HPD detectives traveled to Louisiana, took applicant into custody, and returned him to Houston. In Houston, applicant gave a written statement in which he admitted to participating in the robbery and to killing McCarble, although he asserted that McCarble’s death was accidental. According to applicant, during the screaming and panic that ensued after Scott cried out, he “suddenly fell backwards and the butt of the gun hit [his] arm and the gun went off.” Applicant claimed that he later learned that the man in the booth had been shot. Applicant “[swore that he] was not trying to kñl the old man and the whole thing was a[n] accident.”

Applicant testified twice at his trial, first at a hearing on his motion to suppress his statement and later during the defense’s guilt-innocence case-in-chief. The State cross-examined applicant on both occasions. At the suppression, hearing, applicant denied giving or signing the state: ment. He asserted that one or more of the interrogating officers had beaten him when he refused to cooperate. Although he acknowledged that his signature was on the statement, applicant argued that his interrogators must have traced it from a blank piece of paper that he signed' after being told that he would be released if he did so.

When he later testified in front of the jury, applicant again denied giving or signing the statement. Applicant testified that he was “quite sure” that someone who had been to prison before (as he had) would know better than to sign a confession. Applicant also denied any involvement in the offense, asserting that he was in Louisiana when the robbery and McCarble’s death occurred. Applicant’s eldest sister, Clara Jean Baker, also testified for the defense and corroborated applicant’s alibi.

With the third perpetrator’s identity at issue, the State presented rebuttal evidence that applicant had committed robberies at two other grocery stores just days before McCarble’s murder. The earlier robberies occurred in a similar manner to the robbery in which McCarble died, with applicant wielding a shotgun and guarding the stores’ courtesy booths while accomplices took money.

The jury found applicant guilty of capital murder. At the punishment phase, pursuant to applicant’s stipulation, the State introduced his penitentiary packet. The penitentiary packet showed that applicant had four 1977 felony convictions (three for b’urglary of a habitation with the intent to commit theft and one for aggravated robbery) for offenses he committed in December 1976 and January 1977. Before accepting the stipulation, the trial court questioned applicant directly to determine whether his stipulation was voluntary, knowing, and intelligent.

Applicant’s trial counsel did not call any witnesses or present any evidence at the punishment phase. Based on the jury’s answers to the special issues, the trial court sentenced applicant to death.

B. Applicant’s Initial Direct Appeal

The trial court appointed Richard Bonner, one of applicant’s trial counsel, to represent applicant on direct appeal. After receiving multiple extensions of time, Bonner filed an appellate brief for applicant in July 1983.

Between October 1980 and July 1983, the trial court and this Court received numerous pro se motions and pleadings from applicant. The documents concerned applicant’s desire to participate in his appeal; need for access to the record; growing displeasure with Bonner’s appellate representation; and dissatisfaction with the trial court’s failure to appoint another attorney or to allow applicant to represent himself on appeal pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In October 1983, applicant’s dissatisfaction culminated with his filing of a pro se petition for a writ of mandamus, in which he asked us to require the trial court to dismiss Bonner and to allow applicant to represent himself on appeal.

We remanded the case to the trial court for a Faretta hearing, which the trial court held on November 2, 1983. See Ex parte Moore, No. WR-13, 374-01 (Tex. Crim. App. Oct. 5, 1983) (not designated for publication). George L. Walker, the 1980 trial judge, presided. Applicant advocated on his own behalf and presented five exhibits in support of his request to proceed pro se. Applicant’s exhibits, which were admitted into evidence, included letters that he had written to Bonner regarding the appeal. At the hearing, applicant read several of those letters aloud without any apparent difficulty. When it became evident that applicant was unaware that Bonner had filed a brief, the trial court recessed the hearing for an hour to allow applicant to review the pleading. When the hearing resumed, the trial court questioned applicant to ascertain whether he understood and was satisfied with the legal issues that Bonner had raised. Applicant responded rationally and coherently, although he struggled somewhat to explain Bonner’s legal arguments to the trial court. At the hearing’s conclusion, after applicant reaffirmed that he was willing to accept new appellate counsel, the trial court allowed Bonner to withdraw and appointed John H. Ward. After considering the claims raised by Bonner and Ward, as well as claims raised by applicant in a “Supplemental Pro-Se Brief For The Appellant,” filed-stamped February 26, 1985, we affirmed the conviction and sentence. Moore v. State, 700 S.W.2d 193, 195 (Tex. Crim. App. 1985). The trial court set applicant’s execution for February 26, 1986.

C. Applicant’s Previous State and Federal Habeas Proceedings

In February 1986, the Supreme Court denied applicant’s out-of-time petition for a writ of certiorari and application for a stay of execution filed through new appellate counsel, Carolyn Garcia. See Moore v. Texas, 474 U.S. 1113, 106 S.Ct. 1167, 89 L.Ed.2d 289 (1986). We subsequently denied applicant leave to file an application for an original writ of habeas corpus, denied his first application for a writ of habe-as corpus filed pursuant to Article 11.07, and denied his accompanying motion for a stay of execution. See Ex parte Moore, No. WR-13, 374-02 (Tex. Crim. App. Feb. 25, 1986) (not designated for publication) (original writ application); Ex parte Moore, No. WR-13, 374-03 (Tex. Crim. App. May 19, 1986) (not designated for publication) (first Article 11.07 application).

After we denied the motion for stay of execution, applicant’s counsel filed a petition for a writ of habeas corpus and motion for a stay of execution in federal district court. The federal district court granted a stay. In June 1987, after determining that applicant’s petition contained an unex-hausted claim, the federal district court dismissed applicant’s petition without prejudice to refiling upon exhaustion of the claim in state court. See Moore v. Johnson, 194 F.3d 586, 601 (5th Cir. 1999).

On April 6, 1992, now represented by attorneys Rick G. Strange, Richard R. Fletcher, and Kristi Franklin Hyatt, applicant filed his second Article 11.07 application. In relevant part, applicant alleged that trial counsel rendered ineffective assistance by pursuing an alibi defense and, in furtherance of that defense, - persuading applicant and his sister, Clara Jean Baker, to perjure themselves at the 1980 trial. Applicant further alleged that trial counsel were ineffective for failing to investigate, discover, and present mitigating evidence at the punishment phase. Relying in part on Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), which the Supreme Court decided after his federal habeas petition’s dismissal, applicant for the first time alleged that trial counsel should have discovered and presented evidence that he experienced a troubled childhood, as well as evidence that his intellectual functioning fell in the intellectually disabled or borderline range. To support the allegations, habeas counsel attached some of applicant’s school and prison records, as well as affidavits executed in 1992 by three of applicant’s siblings (Clara Jean Baker, Colleen McNeese, and Ronnie Moore) and applicant’s brother-in-law, Larry Baker.

The school records attached to applicant’s 1992 writ application included his academic, attendance, and cumulative health records, as well as scores that he obtained on the Iowa Test of Basic Skills (ITBS) given in third through sixth grades. The records also included the report of applicant’s 1965 pre-kindergarten school medical examination. The examining doctor recommended psychological testing, commenting, “Child is very withdrawn — maybe retarded but most likely emotional problems.”

The school records additionally included two IQ scores. In 1971, when he was twelve years old and in fifth grade, applicant obtained an IQ score of 77 on an Otis-Lennon Mental Abilities Test (OLMAT). When he was thirteen years old and in sixth grade, applicant was referred to Marcelle Tucker, M.Ed., for a psychological evaluation because .he was performing below grade level, was withdrawn, and took no part in class unless called upon. In her report, Tucker stated that, on January 24, 1973, she gave- applicant a Weeh-sler Intelligence Test for Children (WISC) and two tests of perceptual-motor coordination, specifically, a Bender Visual Motor Gestalt (Bender Gestalt) test and a Goode-nough Draw-a-Man test. Tucker reported that applicant obtained a full scale IQ score of 78 on the WISC and “mental age” scores of eight years, eleven months on the Bender Gestalt and nine years, six months on the Goodenough.

Tucker noted in her report that applicant wás then attending his third elementary school. In describing applicant’s appearance and test behavior, Tucker described him as “nice looking” and “neatly dresáed — very up-tight — did not use left hand even to hold paper when it skidded.” In remarks concerning- applicant’s test results, Tucker again noted his test behavior: “During testing, [applicant] was extremely controlled. He made only the barest minimum of movements. His answers were given in as few words as possible.”' Tucker continued:

The disparity between [the] “Information” (4) and “Comprehension” (8) [sub-tests] on the WISC indicated that perhaps this is a child who has not been taught, but who can learn. ■

Low scores on the Bender and Goode-nough [tests] seem to be negated by the 'average scores oh “Block Design” (9) and “Object Assembly” (9).[subtests] on the WISC.

Tucker recommended that applicant stay in regular classes; but suggested that the school modify his program by using certain specific teaching techniques to strengthen his areas of academic weakness.

The Texas Department of Criminal Justice (TDCJ) records attached to applicant’s 1992 writ application included a February 28, 1984 report of applicant’s psychological evaluation by psychologist George Wheat. Wheat stated that he was conducting the review at the request of the Psychological Screening Committee to assist it with determining applicant’s work-capable status. Wheat stated that applicant self-reported “fairly regular [past] employment as [a] construction ■ laborer and clothing sales clerk.” Wheat also noted that applicant was neatly dressed and exhibited no hesitancy in answering questions. He stated that applicant’s responses “were appropriate to his 9th grade educational level and indicated [an estimated full scale] IQ of 71.” Wheat concluded that applicant was work-capable.

The TDCJ records attached to applicant’s 1992 application also showed that; in January 1989, following an internal quality-assurance audit, applicant was given a complete WAIS-R by a TDCJ psychologist. Applicant, who was thirty years old at the time, obtained a full scale IQ score that was reported as “not [falling within the] retarded range.” The record currently before us shows that applicant obtained a full scale IQ score of 74 on the 1989 WAIS-R.

The habeas court held, an evidentiary hearing on April 28,1993, to address applicant’s ineffective-assistance allegations. Judge Carl Walker Jr. presided. Dr. Robert J. Borda, a clinical neuro-psychologist, reviewed applicant’s school and TDCJ records and testified for applicant. Borda stated that applicant’s scores on the 1973 WISC and 1989 WAIS-R fell within the borderline range of intelligence (70-79) but asserted that applicant’s “mental age” at the time of the offense was no greater than fourteen years. Borda further asserted that applicant’s failure to reach for falling papers during Tucker’s 1973 WISC testing was unusual and consistent with behavior sometimes seen in brain-injured people. However, Borda acknowledged that the records he reviewed did not mention a head injury.

Despite his opinions regarding applicant’s mental age at the time of the offense, Borda did not purport to diagnose applicant as intellectually disabled. Borda testified that IQ tests were developed to measure a person’s potential to succeed in an academic setting and acknowledged that someone who obtained, IQ scores in the borderline range of intelligence might well be capable of functioning successfully in the everyday world. On cross-examination, the State asked Borda whether applicant was capable of formulating complex arguments concerning his trial representation. Borda testified that, based on the documents he had reviewed, he “[saw] nothing that would, indicate that [applicant] has really severe deficits in communication skills. I think he’s ... able to communicate adequately.” ■ ‘

Applicant’s sisters, Clara Jean Baker and Colleen McNeese, and his brother-in-law, Larry Baker, also testified at the 1993 evidentiary hearing. They testified that applicant’s father, Ernest Moore Jr. (“Junior”), was a neglectful, physically and verbally abusive alcoholic who beat his wife, Marion, and their nine children, and threw applicant out of the family home when he was fourteen years old.

Clara Jean testified that applicant would watch their parents when they fought, which was often. Clara Jean asserted that applicant’s observation made Junior angry and caused him to beat applicant. Clara Jean stated that Junior also beat applicant because applicant tried to protect the other children.

McNeese asserted that, although Junior beat her and her other brothers, he beat applicant the most. She testified that Junior threw applicant out of the house because applicant could not spell and Junior thought he was stupid. McNeese stated that, after applicant was thrown out of the house, she and her siblings would sneak food to him at night until Junior discovered what they were doing and made them stop. McNeese acknowledged that Junior also forced her and her other brothers to leave home.

Larry, who lived next to the Moore family as a teenager, stated that he had seen Junior strike applicant, as well as two of applicant’s brothers. Larry testified that he could otherwise tell that applicant was suffering from some sort of physical abuse because applicant had bruises and appeared hungry, haggard, and unrested. Larry said that applicant was generally secretive about the abuse and reluctant to discuss his family situation, but he did talk to Larry about it a couple of times.

Concerning the allegation that Bonner was ineffective as trial counsel by suborning perjury, Clara Jean testified that her family retained Bonner after learning his name from a young woman whom applicant was dating at the time. Clara Jean admitted that she lied at the 1980 trial when she testified that applicant was with her in Louisiana at the time of the offense. Clara Jean asserted that she lied because Bonner convinced her it was necessary for applicant to avoid the death penalty and because she wanted to help applicant.

Applicant also testified at the 1993 evi-dentiary hearing and was cross-examined. Regarding the allegation that trial counsel suborned perjury, applicant admitted that he signed the written statement offered against him at the 1980 trial and asserted that the statement recounted the offense exactly as it happened. Applicant stated that, although he also told trial counsel the truth about the offense, they advised him to testify at trial and deny giving the confession, which he did.

Applicant also testified that, after his arrest, he falsely told another inmate that he had a cache of jewelry. Applicant surmised that trial counsel heard the story because they spontaneously asked him if the story were true and wanted to know the jewelry’s location and worth. Applicant stated that trial counsel implied that giving them the jewelry could increase his chances of a life sentence. To secure a good effort from trial counsel, applicant maintained the lie, telling counsel that the hidden jewelry was worth close to $1 million. Applicant initially avoided specifying a location for the jewelry by telling counsel that he did not think it would be a good idea to disclose it to them. Eventually, applicant told counsel that the jewelry was at his grandmother’s house in Louisiana.

Regarding his background, applicant testified that his father, Junior, was an alcoholic who physically abused him as a child and threw him out of the house permanently at age fourteen. Applicant stated that he was beaten and ejected from the family home because he tried to prevent Junior from beating Marion. Applicant stated that he needed to find a way to survive after Junior permanently threw him out of the house. Because it was difficult to simultaneously care for himself and attend school, he dropped out and became part of “street life.” Applicant testified that he frequented pool halls and similar establishments; slept in the restroom or back of the pool hall; did not immediately try to live with anyone else because his siblings were helping him without their father’s knowledge; obtained food by stealing it from stores; and later moved in with a friend.

Applicant testified that school had been difficult for him. As a student, he “really couldn’t comprehend words as most kids would” and “it was difficult for [him] to read and write.” Applicant asserted that he still had problems with reading and writing, but since being imprisoned, he had spent a lot of time studying and trying to develop himself. As a result, his skills had improved. When shown State’s Exhibit 1, a typewritten pro se pleading titled, “Supplemental Pro-Se Brief For The Appellant,” which was filed-stamped February 26, 1985, and a handwritten cover letter addressed from applicant to the Harris County Clerk, applicant testified that the brief looked familiar to him as a document that someone had helped him prepare. He stated that he knew the contents and purpose of the document and that he had a part in researching it.

Bonner testified at the hearing and denied the allegations made against him. Bonner stated that applicant insisted before and throughout trial that he had an alibi and that counsel pursue such a defense. Bonner said that he spent a great deal of time talking with applicant during the course of his trial representation and that their conversations included discussions of trial strategy. Bonner never received the impression that applicant failed to understand the gravity of his situation or was unable to assist in his own defense; Bonner opined that applicant had assisted counsel very well.

On August 31, 1993, the habeas court entered findings of fact and conclusions of law and recommended that we deny relief on applicant’s allegations. We determined that the record supported the habeas court’s findings and conclusions and denied relief. See Ex parte Moore, No. WR-13, 374-04 (Tex. Crim. App. Oct. 4, 1993). Meanwhile, the trial court set applicant’s execution date for October 26,1993.

On October 12, 1993, applicant filed his second petition for a writ of habeas corpus in federal court, raising the same claims that he advanced in his second Article 11.07 writ application. See Moore, 194 F.3d at 602. He additionally filed a motion for stay of execution, which the federal district court granted. In 1995, the federal district court found that trial counsel performed deficiently at both phases of trial, but that applicant suffered prejudice only as to punishment. See Moore v. Collins, No. H-93-3217, slip op. at 32 (S.D. Tex. Sept. 29, 1995). In 1999, the Fifth Circuit Court of Appeals affirmed the federal district court’s determination that applicant was entitled to punishment relief. See Moore, 194 F.3d at 622.

D. 2001 Punishment Retrial

In February 2001, the trial court held a new punishment trial. The current- habeas judge, Susan Baetz Brown, heard certain pretrial matters, but Judge Larry Fuller presided over jury selection and the evi-dentiary portion of the punishment retrial.

■ At trial, the State reintroduced the evidence that it had presented at the guilt-innocence and punishment phases of applicant’s 1980 trial. It also introduced applicant’s disciplinary reports for the period he was confined on death, row before his original death sentence was vacated.

Those reports showed that, on June 24, 1983, after showering, applicant stopped at a cell to talk to another inmate and ignored three orders to return to his own cell. After refusing the third order, applicant told the reporting officer, “[Y]ou can’t tell me what to do, come on out from behind those bars and make me get in'my cell. You aren’t man enough to put me down.” During a later security check at applicant’s cell, applicant told the officer, “[Y]ou get out from in front of my cell, you motherfucker, I wish these bars weren’t here.” On September 23, 1983, while being let out for recreation, applicant stopped at four different cells to talk to other inmates and ignored eleven orders by the escorting guard to proceed.

On January 23, 1984, applicant ignored orders to stop talking to another inmate and enter the day room. On March 9, 1984, applicant failed to report to his assigned work. When confronted, applicant falsely stated that an officer had given him the day off.

On April 18, 1986, applicant was found to possess a large quantity of pills for which he did not have a prescription. On April 23, 1986, when ordered to shave, applicant told the ' guard that everyone knew that he had a shaving pass. When ordered to show the pass, applicant refused. On October 3, 1986, while giving inmates their meal, a guard ordered applicant to move from a bench, in the day room to a table. Applicant stood up, stated that he “just had to fuck with somebody,” and then refused an order to return to his bunk.

On January 3,1987, applicant refused an order.to get a haircut, stating, “I’m not going to get one.” On January 22, 1987, applicant was among a group of inmates brought to the day room and told to sit down facing the wall. Applicant created a disturbance by jumping up and yelling, “[F]uck this, we don’t have to do this,” and trying to get the other inmates in the day room to join him. When ordered to sit, applicant repeated, “No! [W]e don’t have to do this!” As the guard approached him, applicant returned to the spot where he had been sitting but refused to sit down. Ultimately, the guard grabbed applicant by both arms and placed him face down on the day-room floor.

On November 17, 1987, a prescription-only pill was found in applicant’s cell, wrapped in toilet, paper. Applicant did not have a prescription for the medication. On June. 23, 1988, applicant refused an order to shave, citing a medical condition.

On September 6, 1990, a stinger (an altered electrical cord used to boil water) was found in applicant’s cell. On August 12, 1992, applicant, who was working as a death-row porter, refused an order to clean up a spill in the main hallway. He stated that it was not his job because he was a death-row porter, not a hall porter. On March 30, 1995, applicant was found to possess matches and rolling papers, which inmates were prohibited from having.

Applicant did not testify: at his punishment retrial. However, the defense called nine of applicant’s family members to testify about applicant’s background and the changes they had seen in applicant since he had been imprisoned on death row.

Marion Moore, applicant’s mother, testified that the family had financial problems. She stated that she worked forty hours per week outside the home when applicant was small and that her husband, Junior, worked construction jobs on and off. She testified that Junior developed a drinking habit and would become frustrated with the children when he had been drinking. Marion testified that, in December 1971, applicant was hit in the head by a brick when he was on a school bus and that he received medical treatment for the injury a few days later.

Larry Baker gave testimony similar to that which he gave at the 1993 evidentiary hearing concerning Junior’s verbal and physical abuse of the Moore children. Regarding Junior’s verbal abuse, Larry elaborated that Junior treated the male Moore children differently than the female children. Larry stated that Junior would tell all of his sons that they were “worthless” and “no good.”

When asked to describe what kind of person applicant was between the ages of thirteen and seventeen, Larry testified that applicant was athletic, had a dog and “really had a special relationship with it,” and “was a quiet kind of guy sometimes.” Larry asserted that he had seen changes in applicant since that time. Larry stated that he. “felt initially that [applicant] was not as intelligent as he ha[d] displayed lately.” Larry said that applicant “shows advance [sic] toward intelligence. He reads a lot. His handwriting is excellent. His grasp of vocabulary has improved considerably. His- presentation of himself is much better.”

McNeese testified that the Moore family moved a lot and that they had been evicted on one occasion.' As'to Junior’s physical abuse of applicant, McNeese gave testimony similar to that which she gave at the 1993' evidentiary hearing. She again acknowledged that Junior beat all of the children, but testified that Junior treated applicant differently from her other brothers and said that applicant did not seem like he was Junior’s son.

McNeese also testified that she and applicant attended the same schools when they were young. She said that they first attended Atherton Elementary, at which the student body was predominately black. When applicant was about twelve, as part of a racial integration effort, they were bussed to Scroggins Elementary. McNeese testified that “it was really hard for us to attend [Scroggins] because the people didn’t want us there.” She testified that, when they were first attending Scroggins, applicant was 'hit in the head with a brick because the other students wanted them off the bus. She said that applicant missed school because of the brick incident.

McNeese, who is about'eleven months younger than applicant, testified that she and applicant were placed in the same classroom at Scroggins so that she could help him. McNeese stated that applicant did not respond to the teachers, who did not realize that he could not read, and he would not. participate in anything. McNeese attributed applicant’s behavior in class to the fact that he did not understand what was going on. She said that she overheard teachers discussing applicant and asking each other whether he were intellectually disabled or had a hearing problem. McNeese testified that when she was doing seventh-grade-level work, the teachers would give applicant third-grade-level work to do, and she would stay after class to help applicant with it.

McNeese testified that Hester House, a community center serving Houston’s Fifth Ward, was a place where she and her siblings escaped from their situation. McNeese thought that applicant did better at Hester House than at school because “[i]t was the only place where he could really go without my dad messing with him.” McNeese testified that applicant learned to swim at Hester House, became very good at swimming and enjoyed it, entered into swimming competitions, and at age thirteen, won an award for saving a deaf and mute boy from drowning.

Paravena Richardson, applicant’s cousin, testified that she spent a lot of time in the Moore household as a child and attended school with applicant and some of his siblings. Richardson stated that they first attended Atherton Elementary but then were bussed to Scroggins Elementary, at which the student body was primarily Hispanic. Richardson stated that she was in the same classes with applicant at Scrog-gins and that the Hispanic students there treated him badly — calling him names, picking fights, and once hitting applicant in the side of the face with a brick. Richardson testified that, as a result of his treatment by the Hispanic students, applicant was withdrawn in class and kept to himself.

Richardson said that she had seen Junior, who was quite controlling and could be set off by the most minute things, becom.e physically violent with his children. Richardson stated that Junior targeted applicant more than the other boys. Richardson did not know why and noted that Junior and applicant’s older brother, Charles, had almost as poor a relationship.

Applicant’s brother, Lonnie Moore, testified that he was a couple of years younger than applicant. When Lonnie was ten years old, he attended Scroggins Elementary with applicant. Lonnie testified that he and applicant were part of a group of students who were bussed to Scroggins to integrate it. Lonnie was aware at the time of racial tensions at Scroggins and of things that happened to applicant there.

Lonnie stated that his parents treated him and his younger siblings differently than they treated the older children. Unlike the older children, Lonnie and his younger siblings had to stay in the backyard. They were not allowed to play out in the streets with friends and would be watched over by their eldest sibling, Clara Jean. Lonnie testified that applicant and his other older brothers were not subject to the same restrictions. Lonnie saw Junior physically abuse applicant when applicant stood up for what he thought was right, which included protecting their mother from Junior’s abuse. Lonnie testified that, due to the tension between applicant and Junior, applicant was not comfortable or able to relax at home.

Lonnie testified about gifts that applicant had made in prison for him, which included: clocks in the design of a church and a church cross, a jewelry box, and picture frames. Lonnie further testified that he had seen a big change in applicant since applicant had been on death row. Lonnie thought that applicant had gained direction and developed compassion, and noted that they now talked a lot about religion.

Applicant’s brother, Johnny B. Moore, testified that he was four years younger than applicant. Johnny saw Junior hurt applicant, sometimes for no apparent reason, and at other times, because applicant was trying to stop their parents from fighting. When applicant was still living in the family home, applicant earned money by cutting grass. When the children did not have enough to eat, applicant would use his earnings to help feed his siblings.

Ronnie Moore, the youngest of applicant’s brothers, testified that when their parents were gone, the older children— primarily applicant, Clara Jean, and McNeese — took care of the younger children. Ronnie stated that there was often no food in the house. On one occasion when applicant and McNeese were in charge of the younger children and there was no food, Ronnie saw applicant and McNeese eating from the neighbors’ trash cans. He recalled that they contracted food poisoning.

Ronnie further testified that applicant worked on the weekends for a man named Collier, who mowed lawns, and that applicant also worked in a rest home. Ronnie testified that applicant used his earnings to help support the family. Applicant gave Ronnie money for lunch and their mother money for bills. Ronnie testified that, in addition to beating applicant, Junior would call applicant “stupid” and “dummy.”

Cloteal Morris, applicant’s mother’s eousin, testified that applicant was quiet and well behaved as a young boy, but he was not an open child and never talked very much. She stated that applicant had written her beautiful letters from prison about church and religion. Alice Moore, applicant’s maternal aunt, testified that applicant was quiet as a child and “seemed like a regular kid.” She stated that applicant wrote letters to her from prison and described them as “just normal letters.”

The defense also called Jo Ann Cross, a London solicitor. Cross became acquainted with applicant through her mother, who began corresponding with applicant in 1990. Cross began corresponding with applicant in 1993. Cross testified that applicant’s writing style, spelling, grammar, and use of language had all improved during the period of their correspondence and that it continued to improve.

Cross further stated that applicant now showed “a greater deal of understanding of all sort of issues, be it culture issues [or] politics” than he had at the beginning of the correspondence. Cross explained that she had arranged for applicant to receive newspapers and articles and that they had discussed these materials in their correspondence. She testified that applicant had “absolutely” demonstrated an ability to understand and comprehend the events that she was discussing with him and that he had shown sympathy and happiness for her when it was appropriate. After her mother died in 1996, applicant wrote Cross a very moving letter about her mother’s death. Applicant had also made and sent gifts for Cross and her mother, including a jewelry box with a prayer for peace inlaid in the lid and a musical jewelry box.

TDCJ guards testified that, while on death row, applicant obtained the status of a staff-support inmate, which allowed him to apply for jobs within the prison and enjoy certain privileges during his nonworking time. Applicant’s records showed that he successfully applied for jobs as a wing porter and barber and that he also worked in the shoe and garment factories.

A Harris County Jail guard, Jeff Dixie, testified that, while applicant had been in jail awaiting the retrial, he had seen applicant reading a newspaper. Another Harris County jailor, Kenneth Wayne Young, testified that he had written a motivational book, “Wakeup Call,” and that the chaplain had given a copy to applicant. Young testified that applicant read “all the time” and that applicant introduced newly arrived or troubled jail inmates to Young’s book.

The defense also called two expert witnesses to testify, Dee Dee Halpin and Bet-tina Wright. Halpin was an educational diagnostician with a master’s degree in special education. Wright was a clinical social worker who held a bachelor’s degree in psychology .and a master’s degree , in social work,

Halpin stated that, at the defense’s request, she reviewed applicant’s educational 'records. These records reflected applicant’s attendance, conduct and academic grades, academic achievement test scores, and IQ test results. Halpin testified that applicant attended Atherton Elementary School from kindergarten through fourth grade. She stated that there was a recommendation during the kindergarten year that applicant receive psychological testing because he was very withdrawn. Although the person who recommended testing commented that intellectual-disability was a possible cause for applicant’s presentation, that person thought that emotional problems were the more likely explanation.

Halpin testified that applicant was promoted to first grade, but he made very poor grades that year, especially in all of the language areas, he tested “poorly” in reading and math readiness, and his eye-hand coordination was immature. When applicant was retained a year in first grade, his grades remained weak, with the only significant change being that his conduct grade dropped from “good” to “needs improvement.” When applicant was socially promoted to second grade at age eight, his grades remained about the same. Applicant attended summer school and was promoted to third grade, where his poor grades continued and his conduct dropped to “unsatisfactory,” the lowest possible conduct grade. Halpin testified that applicant’s score- that year on the Iowa Test of Basic Skills (ITBS), a group-administered . standardized achievement test; indicated that he.was a-third grader performing at a second-grade level. .

Halpin testified that applicant was promoted to fourth grade, but his grades remained poor, and he continued to perform below grade level on the ITBS. He was promoted “on appeal” to fifth grade and began attending' a new school, Scroggins Elementary. Applicant’s grades improved from Fs to Ds, and his conduct grades for that year showed significant improvement. When he took the ITBS that year, applicant’s math score was within the average range, although his language score remained below average. When noting applicant’s result on the OL-MAT that applicant took that year (77 IQ), Halpin described the OLMAT as a group-administered IQ test.

Halpin stated that applicant attended a third elementary school for sixth grade. She testified that attending three different schools within three years would be difficult for any child. Halpin explained that, in the era in which applicant attended school, the grade in which certain skills were taught often varied between schools. As a result, a student who changed schools frequently in that era might miss being taught certain skills. In addition, changing schools disrupted continuity in a. child’s learning and required the student to make a social adjustment to the new environment.

Halpin stated that applicant’s ITBS scores for sixth grade showed him' to be performing two years below grade level. Applicant’s records also showed that he took a Slosson Intelligence Test that year, at age thirteen. Halpin testified that applicant “came out with a mental age of' seven-and-a half and so his IQ was 57,” which fell within the intellectually disabled range. But Halpin noted that the Slosson is an individually administered IQ test that strongly favors verbal skills. She asserted that a student with any kind of language difficulty would typically perform poorly on the Slosson and that applicant had consistently shown such language difficulties. In addition, Halpin testified that a notation in applicant’s records stated that his Slos-son IQ score of 57 was “minimal.” Halpin explained that a “minimal” notation typically meant that the test administrator felt that the person actually functioned at a higher level.

Halpin was additionally skeptical of applicant’s score on the Slosson because he subsequently took the individually administered WISC, which separately assessed verbal and nonverbal abilities. Within the overall IQ score of 78 that applicant obtained on the WISC, he obtained a verbal IQ score of 77 and a nonverbal or performance IQ score of 83. Halpin testified that, according to his school records, applicant remained in a regular classroom following the WISC testing.

Halpin testified that she had also reviewed a letter that applicant had recently written. She stated that, although the letter contained some errors, the language was “certainly coherent,” “fairly complex,” and “adult[-]like.” Based on' all the materials she reviewed, Halpin opined that, applicant functioned in the low-average range of intellectual functioning and that he “definitely had some ability to learn that wasn’t tapped early in his school years.”

Wright testified that she had reviewed applicant’s educational records and Dr. Borda’s 1993 evidentiary hearing testimony. She also interviewed applicant twice, for a total of four hours. Wright concluded that applicant “was nowhere near:retarded.” She opined that applicant had an average IQ and that his ability .to learn was “very intact.”

Wright attributed applicant’s difficulties in school to undiagnosed learning disabilities and emotional problems. She opined that his emotional problems stemmed from his learning disabilities, academic failure, and self-described “scary” childhood. She concluded that the quietness and constrained movement noted in applicant’s records were due to his fear rather than to any diminished -intellectual functioning. She explained that applicant was a very vigilant and watchful child who carefully assessed situations before acting.

Wright testified that applicant’s drug use exacerbated his difficulties in school. Applicant told Wright that he began to use drugs in fifth grade to “escape the pain.” He began by using marijuana. By the time he was of junior-high and high-school age, Wright testified, applicant was .using marijuana, alcohol, amphetamines,. tranquilizers, and whatever else he could obtain.

In closing argument, defense counsel emphasized applicant’s background. Defense counsel asserted that applicant did so. poorly in school that he “was considered to be. possibly [intellectually disabled].” But counsel asserted that “we learned later from the experts and other people who looked at [applicant’s school records] that he wasn’t really [intellectually disabled] at all, he was capable of learning.” Counsel argued that “mostly what [applicant’s] young life was about” was “lack of food, violence in the home[,] and one failure after another in school.... It was a cycle of violence in which there was no peace and no safety in the home.” Counsel asserted that, in addition to physically abusing applicant, Junior Moore emot