Full opinion text
OPINION Johnson, J., delivered the opinion of the Court in which Keasler, Hervey, Alcalá, Richardson, and Newell, JJ., joined. In June 2012, a jury convicted appellant of the capital murder of Jennifer Hailey committed on or about September 19, 2010. Tex. Penal Code § 19.03(a)(2). Based on the jury’s answers to the special issues set forth in the Texas Code of Criminal Procedure article 37.071, sections 2(b) and 2(e), the trial judge sentenced appellant to death. Art. 37.071, § 2(g). Direct appeal to this Court is automatic. Art. 37.071, § 2(h). After reviewing appellant’s points of error, we find that the record does not support the offense of capital murder. Consequently, we reverse the trial court’s judgment and sentence of death and remand this cause to the trial court for reformation of the judgment and a new punishment hearing. FACTS Appellant was charged with intentionally causing Jennifer Hailey’s death while he was in the course of committing or attempting to commit the offense of kidnapping against Cameron Lockhart. The trial record shows that appellant met Jennifer and her nine-year-old son, Cameron, when Jennifer and appellant’s then-girlfriend, Andrea Copelyn, worked at the same medical clinic. Jennifer and Cameron sometimes saw appellant at the clinic when he picked up Copelyn after work. They would also see appellant when Copelyn’s daughter babysat Cameron in the home where Copelyn, her three children, and appellant lived. Appellant and Copelyn had been living together, but had separated. However, Copelyn and appellant continued to have a romantic relationship, and appellant continued to interact with Cope-lyn’s co-workers at the clinic. For reasons that do not appear in the record, on September 19, 2010, around 10:00 p.m., appellant asked an acquaintance to drop him off near a unnamed friend’s apartment. Once at the requested apartment complex, appellant went to the two-bedroom apartment where -Jennifer and Cameron lived. Appellant had never been to their apartment before. The record reflects that there were pry marks and other signs of forced entry on the frame of the door into Jennifer’s apartment, but no one could say when the marks were made. Jennifer’s son, Cameron, was the only witness to the assault on' Jennifer. He had gone to bed at 9:00 p.m., but after sleeping for a couple of hours, got up to get a drink of water. As hé walked toward the kitchen, he saw appellant and Jennifer on the floor in the living room. Appellant was on top of Jennifer, and it seemed to Cameron that appellant was hugging her. Jennifer was face down, and her hand was moving a little bit. Cameron called out to her. Appellant appeared startled and partially rose. Cameron asked, “Stanley, what are you doing?” Appellant replied that he was not Stanley; rather, he was “Michael from Huntsville.” Cameron continued to address appellant as Stanley. Appellant told Cameron to go back to bed, and Cameron did. Ten or fifteen minutes later, Cameron again left his bedroom. As he stood in the hallway, he could see Jennifer lying face up on the floor of her bedroom. He knew from experience that Jennifer fainted easily, .but could not tell from that distance whether • she had fainted or was hurt. Cameron told appellant that he had to go to the bathroom, although that assertion was only a way to get nearer to his mother! Although there was a bathroom across the hall from Cameron’s bedroom, Cameron chose to use the bathroom in his mother’s room. He was thus able to get a closer look at his mother, but he was still unable to ascertain whether she was hurt. As Cameron walked out of his mother’s room, appellant told Cameron that he wanted to “chill” with him. Hoping that appellant would leave, Cameron told appellant that he was going back to bed. Cameron walked toward his bedroom,' but appellant grabbed him from behind, choked him, and then repeatedly struck Cameron’s jaw, back, and neck with a garden trowel that appellant had retrieved from the “washroom.” Cameron passed out in the hallway. When Cameron, awoke, he was lying on the living-room floor under a comforter that had been taken from his bed, and appellant was gone from the apartment. Jennifer was still lying on the floor of her bedroom. Cameron could not awaken her and thought that she was dead. He called his grandmother, Nancy Hailey, around 5:00 a.m. and asked for help. Nancy then called 911 and her son, Jayson Hailey. Jayson reached Jennifer’s apartment shortly before emergency responders did. After much pounding on the door by Jayson, Cameron opened it for him and" told him what had happened. Jayson went to Jennifer’s bedroom and picked her up, intending to take her to the hospital, but as he carried her, he concluded that she needed immediate care. He put her down near the front door and prepared to begin CPR. When he moved Jennifer’s bloodied hair away from her face, he saw that her face was purple and swollen and that her tongue was blocking her airway. When the EMTs arrived, they took over attending to Jennifer.. They also saw a big gash on Cameron’s neck and smaller gashes on the side of his face and therefore transported Cameron to the hospital. He had lost a significant amount of blood, but he survived his injuries. SUFFICIENCY OF THE EVIDENCE In his first point of error, appellant asserts that the evidence was legally insufficient to prove that he intentionally murdered Jennifer in the course of kidnapping Cameron. Appellant concedes that the ev-idénce is legally sufficient to show that he intentionally murdered Jennifer, but he asserts that the evidence did not prove capital murder because it did not show that appellant committed the murder to facilitate a kidnapping: “Nothing suggests that appellant strangled Jennifer Hailey merely to disable or harm her so that he could abduct Cameron Lockhart.” Appellant also concedes that the evidence proved that he attacked Cameron in order to delay the discovery of Jennifer’s murder, but he also asserts that the evidence demonstrated that Jennifer “had been murdered before appellant said or did anything to Cameron Lockhart.” When reviewing the sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found' the essential elements of the crime beyond a reasonable doubt. Adames v. State, 353 S.W.3d 854, 860 (Tex.Crim.App.2011) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). This standard recognizes the fact finder’s role as' the sole judge of the weight and' credibility of the evidence after drawing reasonable inferences from it. Id. (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007). This Court determines whether the necessary inferences made by the fact finder are reasonable, based upon the cumulative force of all of the evidence. Id. (citing Hooper v. State, 214 S.W.3d 9, 16-17 (Tex.Crim.App.2007)). Texas Penal Code section 19.03(a)(2) provides that a person commits capital murder if the person commits murder, as defined under section 19.02(b)(1) (intentionally or knowingly causing the death of an individual), and the person intentionally commits the murder in the course of committing or attempting to commit a specified offense, in this case, kidnapping. The parties agree that, as used in Texas Penal Code section 19.03(a)(2), “in the course of committing” is defined as conduct occurring during an attempt to commit, during the commission of, or in immediate flight from, the forbidden behavior. See, e.g., Rivera v. State, 808 S.W.2d 80, 93 (Tex.Crim.App.1991). Texas Penal Code section 20.03(a) provides that a person commits kidnapping if he intentionally of knowingly abducts another person. “Abduct” means to restrain -a person with intent to prevent his liberation by: (A) secreting or holding him in a place where he is not likely to be found; or (B) using or threatening to use deadly force. Tex, Penal Code § 20.01(2). “Restrain” means to restrict a person’s movements without consent, so as to interfere substantially with his liberty, by moving him from one place to another or by confining him. Tex. Penal Code § 20.01(1). Restraint is without consent if it is accomplished by: (A) force, intimidation, or deception; or (B) any means, including ac-quie'scence of the victim, if he is a child less than fourteen years of age and the parent, guardian, or person or institution acting in loco parentis has not acquiesced in the movement or confinement. Id. A kidnapping becomes a completed offense when (1) a restraint is accomplished, and (2) there is evidence that the actor had the specific intent to prevent liberation by secretion or the use or threatened use of deadly force. Santellan v. State, 939 S.W.2d 155, 162 (Tex.Crim.App.1997) (citing Mason v. State, 905 S.W.2d 570, 575 (Tex.Crim.App.1995)). The law imposes no minimal requirement for restraint other than the interference with the person’s liberty be substantial. Earhart v. State, 823 S.W.2d 607, 618 (Tex.Crim.App.1991) (citing Rogers v. State, 687 S.W.2d 337, 342 (Tex.Crim.App.1985)). Nothing in the kidnapping statute requires the state to prove that a defendant moved a victim a certain distance or held him for a specific length of time. Reyes v. State, 84 S.W.3d 633, 636-37 (Tex.Crim.App.2002) (citing Hines v. State, 75 S.W.3d 444, 447 (Tex.Crim.App.2002)). The statute does require, however, evidence of both restraint and intent to prevent liberation by secreting or holding him in a-place where he is not likely to be found or using or threatening to use deadly force. The evidence is insufficient to show that appellant murdered Jennifer in the course of kidnapping Cameron, but is sufficient to show a murder, followed by. a number of other possible offenses, including aggravated assault, injury tó a child, or attempted murder. Appellant, while choking Jennifer, told Cameron to go to his room, and Cameron complied. But Cameron was not restrained under the language of the statute; he was free to move about the apartment, and he did so. He returned to his bedroom, then left it again, told appellant that he needed to go to the bathroom, then went to the bathroom that was in his mother’s room rather than the one closest to his room. As Cameron left his mother’s bedroom, he told appellant that he was going back to bed. Only.at that point did appellant grab Cameron and restrict his freedom of movement. More tellingly, it was only after the murder, with Jennifer dead on the floor of her bedroom, that appellant restricted Cameron’s movements without consent and interfered substantially with his freedom of movement. Tex. Penal Code § 20.01(l)(B)(i), Certainly, appellant used force in his assault on Cameron, but the record does not show any specific intent to hide Cameron or to confine him. Appellant’s intent at that time was not to kidnap Cameron, but rather to kill him with the trowel and thereby remove him as a possible witness against appellant, for the already completed murder of Jennifer, and appellant’s use or threatened use of deadly force was for that purpose only. See, e.g., Laster v. State, 275 S.W.3d 512, 524-25 (Tex.Crim.App.2009) (a defendant’s intent may be discerned from the surrounding circumstances). To equate the mere use of force with kidnapping is to make every assault into kidnapping. See Tex. Penal Code § 20.01(2)(A), (B); see also Brimage v. State, 918 S.W.2d 466, 475-76 (Tex.Crim.App.1994) (to prove kidnapping, the State must prove that a restraint was completed and that the actor evidenced an intent to prevent liberation by either secretion or deadly force). Appellant argues that the evidence was insufficient to prove capital murder because it failed to show that he committed the murder to facilitate the kidnapping. However, the plain language of Section 19.03(a)(2) contains no general requirement that in order to constitute capital murder, the murder must be committed to facilitate the underlying felony offense. We have previously rejected arguments that the evidence must show that the murder was committed in furtherance of the underlying felony. See, e.g., Dorough v. State, 639 S.W.2d 479, 480-81 (Tex.Crim.App.1982) (evidence of capital murder was sufficient when defendant drove victims into the desert, raped female victim, told victims to walk away, then murdered male victim); Moore v. State, 542 S.W.2d 664, 674-75 (Tex.Crim.App.1976) ( the legislature did not intend for a defendant to escape capital-murder charges when he kidnapped victim from scene of robbery and killed her to prevent her testimony). In each of the above cases, the murder was committed during or after the commission of the charged underlying felony. That is not the case here. Appellant correctly observes that a felony that is committed as an afterthought and unrelated to the murder is not sufficient to prove capital murder under Section 19.03(a)(2). See, e.g., Herrin v. State, 125 S.W.3d 436, 440-41 (Tex.Crim.App.2002) (evidence of capital murder was insufficient when there was no evidence that appellant intended to kidnap victim before or during intentional murder). In this case, appellant assaulted Cameron only after Jennifer’s murder was completed, seemingly to eliminate a witness to that murder. See id. There is nothing in the record to indicate that appellant’s intent when he entered Jennifer’s apartment was to kidnap Cameron and that, during that attempt, appellant murdered Jennifer. Instead, the record reveals that appellant killed Jennifer before he became aware that Cameron was in the apartment and awake. After the murder, appellant did not seek Cameron out and attempt to abduct him; rather, concerned for his mother, Cameron went looking for her and found his mother and appellant in his mother’s bedroom. Until appellant seized Cameron and assaulted him with the trowel, Cameron was no more restrained than he was before appellant entered the apartment. We find that Cameron was assaulted but not kidnapped. Because the murder was complete before the attack on Cameron, and because Cameron was not restrained by appellant before appellant attacked Cameron with the trowel, the evidence does not support a conviction for capital murder. In Thornton v. State, 425 S.W.3d 289, 295-300 (Tex.Crim.App.2014), we discussed the development of our jurisprudence regarding the availability of a reformation of a judgment after a finding of insufficient evidence. In Britain v. State, 412 S.W.3d 518, 521 (Tex.Crim.App.2013), we pointed out that, when the evidence is legally insufficient only as to an aggravating element, it is appropriate for an appellate court to strike the unproved aggravating element and reform the judgment to reflect guilt of a lesser-included offense. And in Thornton, 425 S.W.3d at 300, we explained that, when the lesser-included offense is one that the jury necessarily found and the evidence is sufficient to support that lesser-included offense, the appellate court is required “to avoid the ‘unjust’ result of an outright acquittal by reforming the. judgment to reflect a conviction for the lesser-included offense.”. This case does not involve a lesser or greater culpable mental state, but rather insufficient evidence to prove the alleged aggravating element that raised Jennifer’s murder to capital-murder. In this case, the jury charge included an instruction regarding the lesser-included offense of murder: whether appellant was guilty of intentionally causing Jennifer Hailey’s death. This lesser-included-offense instruction did not include any reference to the aggravating element-causing a death in the course of committing or attempting to commit the offense of kidnapping against Cameron Lockhart. Appellant concedes that the evidence is legally sufficient to show that he intentionally murdered Jennifer, and our review of the evidence confirms that the evidence was sufficient for a rational jury to find that appellant intentionally caused the death of Jennifer Hailey by strangling her. We conclude that the jury necessarily found that appellant committed the. lesser-included offense of murder and that the evidence is sufficient to support such a finding, thus reformation of the judgment is appropriate. We find that the evidence does not support a verdict of guilty as to capital murder and that, based upon the judgment’s reformation to reflect a conviction for murder, punishment must be reassessed. Accordingly we remand this ease to the trial court for reformation of the judgment to reflect a conviction for murder and for a new punishment trial. See Herrin, 125 S.W.3d at 443-44 (Tex.Crim.App.2002). In these circumstances, we need not address the remainder of appellant’s points of error, all of which assert error during the punishment proceedings and are rendered moot by our reformation of the conviction and remand for a new punishment hearing. . Yeary, J., filed a dissenting opinion in, which Keller, P.J., and Meyers, J., joined. . Unless otherwise indicated all references to Articles refer to the Code of Criminal Procedure. . To avoid confusion, we refer to Jennifer Hailey and other members of the Hailey family by their first names.
DISSENTING OPINION Yeary, J., filed a dissenting opinion in which Keller, P.J., .and Meyers, J., joined. Because I believe that the evidence was sufficient to establish .that Appellant caused Jennifer Hailey’s death while in the course of kidnapping Cameron Lockhart, I dissent to reforming the judgment to reflect conviction for the lesser-included offense of murder and remanding for a new punishment proceeding. Furthermore, because Appellant has asserted no guilt phase trial error, and because I find no trial error that was committed at the punishment phase, I would affirm the trial court’s judgment in all respects. STATEMENT OF FACTS Appellant was charged with intentionally causing Jennifer Hailey’s death while he was in the course of committing or attempting to commit the offense of kidnapping against Cameron Lockhart. Viewed in the light most favorable to the verdict, the trial record shows that Appellant met Jennifer and her nine-year-old son, Cameron, when Jennifer and Appellant’s girlfriend, Andrea Copelyn, worked at the same medical clinic. Jennifer and Cameron sometimes saw Appellant at the clinic when he came in to pick up Copelyn after work. They' would also see Appellant when’ Copelyn’s daughter babysat Cameron in the home where Copelyn, her three children, and Appellant lived. ■ Appellant and Copelyn began dating in the' spring of 2006, and they began living together in February or March 2007. Appellant physically abused Copelyn on several occasions. When Copelyn learned that Appellant had also abused her son, she decided to leave Appellant in order to protect her children. On July 24, 2010, Copelyn and her children moved out of the house. Appellant had to move' out when the lease ended on July 31. However, Copelyn and Appellant continued having a romantic relationship, and Appellant continued interacting with Copelyn’s co-workers at the clinic. Appellant believed that Copelyn would let him live with her again if he did “something good,” such as finding a job or completing a spiritual development program. On September 17, 2010, Copelyn met Appellant at the mission where he was staying so that they could go to church services together. Appellant wanted to go home with Copelyn, but she told him that he could not live with her again until her children went off to college. Appellant became very upset. He climbed into Co-pelyn’s car and refused to get out. He yelled repeatedly for Copelyn to take him home. People who overheard the noise intervened on’ Copelyn’s behalf so that she could leave. As a result of this outburst, Appellant was barred from the mission. Some time after midnight, Appellant went to Copelyn’s house. He knocked on her front door, but she did not answer. She saw him looking through the windows before he left. On September 19, 2010, around 10:00 p.m., Appellant asked an acquaintance to drop him off near a friend’s apartment. Appellant did not name the person he intended to visit. Once at the apartment complex, Appellant went to the two-bedroom apartment where Jennifer and Cameron lived. Appellant had never been to their apartment before. Cameron had gone to bed at 9:00 p.m., but after sleeping for a couple of hours, he got up to get a drink of water. As he walked toward the kitchen, he saw Appellant and Jennifer in the living room. Appellant was on top of Jennifer on the couch. It looked to Cameron like Appellant was hugging her, and he later told an investigating officer that he had seen Appellant with his hands around Jennifer’s throat. Jennifer was face down, and Cameron could see that her hand was moving a little bit. Cameron called out to her. Appellant appeared startled and raised up. Cameron asked, “Stanley, what are you doing?” Appellant replied that he was hot “Stanley”; rather, he was “Michael from Huntsville.” He told Cameron to go back to bed and Cameron complied. - Ten or fifteen minutes later, Cameron again left his bedroom. As he stood in the hallway, he could see Jennifer lying face up on the floor of her bedroom. Cameron could not tell if she was hurt." He knew from experience that Jennifer fainted easily. Cameron told Appellant that he had to go to the bathroom. Although there was a bathroom across the hall from Cameron’s bedroom, Cameron went to the bathroom in his mother’s room. He was able to take a closer look at Jennifer, but he was still unable to ascertain whether she was hurt. As Cameron walked out of his mother’s room, Appellant told Cameron that he wanted to “chill” with him. Hoping that Appellant would leave, Cameron told Appellant that he was going back to bed. Cameron walked toward his bedroom, but Appellant grabbed him from behind and choked him. Appellant struck Cameron’s jaw, back, and neck with a garden trowel he had retrieved from the utility room, Cameron passed out in the hallway. When Cameron awoke, Appellant was no longer in the apartment, Cameron was lying on the living room floor under a comforter that had been taken from Jennifer’s bed. Jennifer was lying in her bedroom. Cameron could not wake her up and thought that she was dead. He called his grandmother, Nancy Hailey, ’ around 5:00 a.m. Nancy then called 9-1-1 and-her son, Jayson Hailey. ■ > - Jayson reached Jennifer’s apartment shortly before emergency responders did. Cameron opened the door for him and told him what had happened. Jayson entered Jennifer’s bedroom and observed that her hair/ matted with dried blood, was covering her face. He picked her up, intending to take her to the hospital, but as he carried her, he concluded that she needed more immediate care. He lay her down near the front door to perform CPR. When he moved Jennifer’s hair away from her face, he saw that her face was purple and swollen. 'The chest compressions associated with performing CPR caused blood to come out of her mouth. Emergency responders observed a big gash on Cameron’s neck and smaller gashes on the side of his face. They transported Cameron to the hospital. Cameron had lost a significant amount of blood, but he survived his injuries. SUFFICIENCY OF THE EVIDENCE. Whether the jury could rationally conclude that Appellant kidnapped Cameron on this record depends upon whether it could rationally find: (1) that Appellant “restrained” him and, if so, (2) that Appellant also “abducted” him. That is to say, did Appellant “restrain” Cameron with the additional specific intent to ultimately prevent Cameron’s liberation — intending to accomplish that ultimate goal either by secreting or holding him in a place where he was not likely to be found, or by using or threatening to use deadly force against him? In order to accomplish an abduction, Appellant need not' have actually secreted or held Cameron, or used or threatened to use deadly force; he need only have had the intent to do so at the time he restrained Cameron. Laster v. State, 275 S.W.3d 512, 521 (Tex.Crim.App.2009); Santellan v. State, 939 S.W.2d 155, 162 (Tex.Crim.App.1997); Mason v. State, 905 S.W.2d 570, 575 (Tex.Crim.App.1995); Brimage v. State, 918 S.W.2d 466, 475 (Tex.Crim.App.1994) (plurality opinion on original submission). Restraint: The simple “restraint” element can be accomplished by either moving or confining the victim “so as to interfere substantially” with the victim’s liberty. It is true that Appellant did not literally pick Cameron up and carry him, or otherwise physically move Cameron. He simply told Cameron, “Go back to your bed. Go back to your room[,]” and Cameron complied. But the Court should not construe the definition of restraint to require that the actor himself physically move his victim from one place to another. It is enough that he" cause the victim somehow to move or be moved. Otherwise, it would not be possible for purposes of “restraint” to move a victim from one place to another “by ... intimidation or deception!)]” Tex. Penal Code § 20.01(1)(A). , Neither of these statutorily contemplated means of moving a victim — intimidation or deception — necessarily requires thó actor himself to have physically moved the victim. So long as the actor causes the victim to move or be moved without consent from one place to another “so as to interfere substantially with [the victim’s] liberty,” id. § 20.01(1), he has perpetrated a restraint. The jury might rationally have concluded that Appellant “moved” Cameron by this definition. . Moreover, the jury might rationally have concluded that, as an adult instructing Cameron in no uncertain terms to go back to his bedroom, Appellant also effectively “confined” him there. With this understanding of the “restraint” element, the evidence in this case would permit the jury to conclude that Appellant “restrained” Cameron. He caused Cameron to “move” to his bedroom “by ... any means,” including by simply telling him to do so, and he also thereby “confined” him. Tex. Penal Code § 20.01(1)(B)(I). The fact that Cameron acquiesced does not establish that the restraint was consensual, since Cameron was less than 14 years old and his mother did not acquiesce. See id. (restraint is non-consensual “if it is accomplished by .., any means, including acquiescence of the victim, if’ the victim is younger than 14 and the parent has not acquiesced in the victim’s movement or confinement). Abduction: Does the evidence also establish that Appellant “abducted” Cameron? While Appellant restrained Cameron, did he also have the specific intent, not just to substantially interfere with his liberty, but to actually “prevent his liberation by ... [either] secreting or holding him in a place where he is not likely to be found [or] using or. threatening to use deadly force”? See Laster, 275 S.W.3d at 521 (“The offense of kidnapping is legally completed when the defendant, at any time during the restraint, forms the intent to prevent liberation by secreting or holding another in a place unlikely to be found.”). In my view, the evidence supports a rational inference that when Appellant restrained Cameron, he did in fact harbor the additional intent, not just to interfere with his liberty, but to prevent his liberation — if not only by “secreting or holding” him, then also by using deadly force against him in order to dispatch the only witness to Jennifer’s murder. The jury might rationally have concluded that, even as of the time that Appellant instructed Cameron to go back to bed — and in any event at some point during the restraint, he formulated the intent to secret or hold Cameron or even to kill Cameron so that Cameron could not later be a witness against him. Thus, the jury could reasonably have concluded, the purpose of Cameron’s initial restraint was to hold Cameron in a place from, which he could not interfere with Appellant’s assault upon Jennifer or communicate with someone else who might interfere. Alternatively, the jury might rationally have concluded that, when Appellant initially restrained Cameron, his purpose was to ensure that Cameron would never be liberated, a goal that Appellant intended to accomplish by later using deadly force against him. Viewed in the light most favorable to the jury’s verdict, the evidence supports a finding beyond a reasonable doubt that Appellant abducted, and hence kidnapped, Cameron. Indeed, Appellant does not vigorously contest that he kidnapped Cameron. He argues, however, that the evidence fails to show that Jennifer’s murder occurred during the course of Cameron’s kidnapping. Specifically, he contends: “[s]he had been murdered before [A]p-pellant said or did anything to Cameron Lockhart. At most, the State’s evidence may show a kidnapping in the course of a murder. This theory of capital murder is contrary to the plain language of Texas Penal Code, Sec. 19.03(a)(2). See Herrin v. State, 125 S.W.3d 436, 440 n. 7 (Tex.Crim.App.2002).” Appellant’s Brief at 12. In Herrin, the Court observed that, when it comes to a murder alleged as capital because it was committed in the course ■ of also committing the predicate offense of kidnapping, “[t]he critical question is whether the murder was committed in the course of the kidnapping or attempted kidnapping, not the other way around.” 125 S.W.3d at 440. Appellant- argues that the evidence- shows that he had already completed Jennifer’s murder by the time he restrained Cameron, that the kidnapping was an “afterthought,” -and that it cannot therefore be said that he murdered her “in the course of’ kidnapping Cameron. See id. at 440 n. 6 (“The same principle applies in the robbery/capital murder context. If the robbery is committed as an afterthought and unrelated to the murder, the State has not proven the murder was committed in the course of the robbery.”). As is the case with a murder that is a capital offense because committed in the course of a robbery, to be a capital offense, the “intent to [kidnap] must be formed before or at the time of the murder.” Alvarado v. State, 912 S.W.2d 199, 207 (Tex.Crim.App.1995). Appellant contends that there is insufficient evidence to permit a jury to rationally conclude that he formed an intent to kidnap Cameron “before or at the time of’ the murder. Santellan, 939 S.W.2d at 164. I disagree. The medical examiner testified that Jennifer’s cause of death was “homicide asphyxia to include strangulation,” and that the deprivation of oxygen to her brain killed her. He also testified that to cause death in this way is not a quick process: Q. • And so to be killed by strangulation does there have to be pressured [sic] applied after the person is motionless? A. Yes. Q. For how long? A. We’re talking for a good minute, two, maybe even three. Cameron told an -investigating officer that when he first saw Appellant and his mother in the living room, he saw Appellant “on top of his mother with his hands around her throat holding her down on the couch.” Cameron himself seemed less sure of exactly what he saw, testifying that “I couldn’t really tell — the last thing I would know is he was choking her. From my angle I.guess he was just hugging her or something like that.” At any rate, when asked whether at this time he could see Jennifer’s hand moving, Cameron answered, ‘Yeah, a little bit.” When Cameron re-emerged later from his bedroom, Jennifer had been moved from the living room to her bedroom, but by this time she was no longer- moving at all. A rational jury could conclude from the totality of circumstances that, by the time Appellant told Cameron to return to his room, thus abducting him, he had not yet applied the sustained pressure to Jennifer’s neck needed to not only incapacitate her, but also to cause her death by strangulation. This evidence indicates that, while Appellant may have' already begun to strangle Jennifer when Cameron first interrupted him, he did not finish the job until after he had restrained Cameron by sending Cameron back tó his room. The jury could have credited'this evidence in order rationally-to conclude that - Appellant had initiated Cameron’s kidnapping before or at the time he killed Jennifer. Appellant insists, however, that the evidence must show that he murdered Jennifer in order to “facilitate” Cameron’s kidnapping, and “not the other way. around.” Herrin, 125 S.W.3d at 440. Even if Jennifer was still alive when Appellant restrained Cameron, he maintains, it was not a capital murder because the kidnapping was committed to facilitate the murder rather than the murder facilitating the kidnapping. It is true that we said that, in the context of murder/robbery, in order to be a capital offense, the murder must “facilitate the taking of the property.” Id. n. 6 (quoting Moody v. State, 827 S.W.2d 875, 892 (Tex.Crim.App.1992)). This notion that a capital murder under Section 19.03(a)(2) of the Penal Code must be committed to “facilitate” the commission of the predicate offense apparently, derives from the statutory language requiring that the murder be committed “in the course of committing” that predicate offense. Id. But our decision in Herrin itself did not turn on this “facilitation” construction of the phrase “in the course of committing.” I would reject this construction because I think it represents a less expansive understanding of “in the course of committing” than the Legislature intended. It is enough to effectuate the legislative purpose that the evidence show that Appellant had begun to commit the predicate offense of'kidnapping “before or at the time of’ the commission of the murder. Herrin cited Moody for the proposition that “facilitation” is required. Moody (which also did not depend on the “facilitation” construction of “in the course of committing” for its holding and, indeed, did not even involve a sufficiency of the evidence claim), in- turn cited Ibanez v. State, 749 S.W.2d 804, 807 (Tex.Crim.App.1986). In Ibanez, we observed that “[a] killing and unrelated taking of property do not constitute capital murder under .[Section] 19.03(a)(2): the State must prove a nexus between the murder "and theft, i.e.[,] that the murder occurred in order to facilitate the taking of the property.” 749 S.W.2d at 807. Ibanez, in turn, cited three opinions of this Court, none of which used any form of the word “facilitate” to convey the idea that, for a murder to be capital, it must be committed “in the course of’ robbery or one of the other- predicate felonies listed in Section 19.03(a)(2). In fact, -I find no prior case that squarely holds as much. I do not believe that-the statutory language, while it undoubtedly requires some level of relatedness of the murder to the predicate offense, necessarily requires that it must facilitate (i.e., “to make easier , or less difficult”) the commission of the predicate offense. If that were what the Legislature meant, it would likely have used language similar to that which is found.- in the felony murder statute. There, the Legislature proscribed causing the death of an individual “in the course of and in furtherance of the commission” of a predicate felony offense. Tex. Penal Code .§ 19.02(b)(3)(emphasis added). At the same time, the phrase “in the course of committing” is certainly narrower than the phrase “the same transaction,” to be found in the mass murder subsection of the capital murder statute. See Tex. Penal Code § 19.03(a)(7)(A) (making it a capital offense to murder more than one person “during the same criminal transaction”). I think it enough to distinguish the phrase “in the course of committing” from these other two statutory phrases to say that it requires that an accused have initiated the commission of the predicate offense either “before, or as,” he committed murder. E.g., White v. State, 779 S.W.2d 809, 815 (Tex.Crim.App.1989). Accordingly, I would hold that a murder need not facilitate' the commission of the predicate offense in order, to have been committed “in. the course of’ the predicaté offense. It is sufficient that the actor initiated the commission of the predicate offense at some point before or during the time he engages in the conduct that results in the murder. This is as much “nexus” as the Legislature meant to require in the capital murder-in-the~course-of-a-felony context. While murder in the course of committing one of the predicate felonies may often incidentally serve to facilitate the commission of the predicate felony, I do not believe the Legislature intended that to be a prerequisite to a conviction for capital murder under Section 19.02(a)(2). An offender who goes on to commit a completely gratuitous murder while carrying out one of felonies designated under the statute is surely still guilty of committing a murder “in the course” committing the predicate felony, regardless of whether the murder “facilitated” the predicate felony. Because there is evidence from which the jury could have rationally concluded that Appellant had in fact kidnapped Cameron (having restrained him with the requisite intent to constitute abduction) as he was still engaging in the protracted conduct by which he eventually caused Jennifer’s death, a rational jury could have concluded that he committed murder in the course of committing kidnapping. We need not also decide whether the Jennifer’s murder “facilitated” Cameron’s kidnapping. I would overrule Appellant’s first point of error and proceed to a review of the balance of Appellant’s points of error. FIFTH AMENDMENT In points of error two through four, Appellant asserts that the trial court violated Article 1, Section 10, of the Texas Constitution, Article 38.08 of the Code of Criminal Procedure, and the Fifth Amendment to the United States Constitution. Specifically, Appellant complains that the trial court erroneously overruled his objection that the prosecutor improperly placed Appellant’s failure to testify into evidence when the prosecutor elicited Dr. Timothy Proctor’s testimony that Appellant refused to speak to Proctor about details of the offense. Contrary to Appellant’s allegations, the record shows that Proctor did not testify that Appellant refused to speak to him about details of the offense. Rather, Proctor testified that he did not discuss the facts of the offense with Appellant because the court had instructed him not to. Accordingly, these points of error are without merit because the record does not support the factual allegations upon which they rely. I would overrule points of error two through four. In points of error five through seven, Appellant asserts that the trial court violated Article 1, Section 10, of the Texas Constitution, Article 38.08, and the Fifth Amendment to the United States Constitution. Specifically, Appellant complains that the trial court erroneously overruled his objection that the prosecutor improperly placed Appellant’s failure to testify into evidence when the prosecutor elicited Proctor’s testimony that Proctor did not discuss the facts of the offense with Appellant because the court had granted the defense’s request that Proctor not discuss the details of the offense with Appellant. Appellant contends that he is entitled to a new punishment hearing because the trial court committed a constitutional error that “genuinely corrupted the fact-finding process” and therefore was not harmless under Rule 44.2(a) of the Texas Rules of Appellate Procedure. The record reflects that a defense expert, Dr. Mark Cunningham, and the State’s expert, Dr. Proctor, each evaluated Appellant for mental retardation and future dangerousness. Both experts testified at trial that they had been instructed not to discuss the facts of the offense with Appellant. Appellant objected generally before trial that the State’s motion for a psychological evaluation would violate his right to remain silent under Article 1, Section 10, of the Texas Constitution. However, he never specifically objected, under the state constitution or Article 38.08, to the complained-of part of Proctor’s testimony. See Roberts v. State, 220 S.W.3d 521, 532 (Tex.Crim.App.2007) (finding that an attack on testimony in general, advanced before any testimony was heard, did not place the trial court on notice that the appellant would find particular testimony objectionable). Therefore, Appellant did not preserve his state constitutional and Article 38.08 claims for appeal. See Tex.R.App. 33.1(a); see also Yazdchi v. State, 428 S.W.3d 831, 844 (Tex.Crim.App.2014). However, Appellant timely and specifically objected under the Fifth Amendment of the United States Constitution to the complained-of part of Proctor’s testimony. Therefore, he preserved his federal constitutional claim. I would reject Appellant’s Fifth Amendment claim on the merits for the reasons we rejected the same claim in an unpublished opinion addressing a similar fact pattern. See Milam v. State, AP-76,379, slip op. at 37-41, 2012 WL 1868458 (Tex.Crim.App. May 23, 2012) (not designated for publication). In Milam, we held that the trial court did not err by allowing the parties’ evaluating experts to testify that they had been instructed not to discuss the facts of the offense with the appellant. We stated that such testimony did not violate the appellant’s Fifth Amendment right to remain silent because the appellant constructively took the stand and waived his Fifth Amendment right to remain silent when he spoke to his own expert and introduced the expert’s testimony based on that interview. Id. at 40 & n. 79 (citing Chamberlain v. State, 998 S.W.2d 230, 234 (Tex.Crim.App.1999); Lagrone v. State, 942 S.W.2d 602, 610-11 (Tex.Crim.App.1997); and Soria v. State, 933 S.W.2d 46, 58-59 (Tex.Crim.App.1996)). The State was then entitled to offer rebuttal testimony, limited to the issues raised by the defense expert, and to test the experts’ opinions by questioning them about how they arrived at those opinions. Id. at 40 & n. 80 (citing Lagrone, 942 S.W.2d at 611, and Renteria v. State, No. AP-74,829, slip op. at 87-89, 2011 WL 1734067 (Tex.Crim.App. May 4, 2011) (not designated for publication)). I would hold that, like the defendant in Milam, Appellant constructively took the stand and waived his Fifth Amendment right to remain silent when he spoke to his own expert and introduced testimony .based on that interview. The State was then entitled to offer rebuttal testimony and to question the experts about how they arrived at their opinions. I would overrule points of error five through seven. MENTAL RETARDATION In point of error eight, Appellant asserts that the jury’s adverse finding on Appellant’s mental retardation special issue was so against the great weight and preponderance of the evidence as to be manifestly unjust. Appellant notes that the trial court submitted the question of whether Appellant was mentally retarded as a special issue at punishment and instructed the jury that Appellant had to prove by a preponderance of the evidence that he was mentally retarded. When the issue is presented at trial, a defendant bears the burden of proof, by a preponderance of the evidence, to establish that he is mentally retarded. Hunter v. State, 243 S.W.3d 664, 667 (Tex.Crim.App.2007). In evaluating the sufficiency of the evidence to support a jury’s rejection of a claim of mental retardation on direct appeal, we must consider all of the evidence relevant to the issue and evaluate whether the judgment is so against the great weight and preponderance , of the evidence as to be manifestly unjust. Id. We afford great deference to- the jury’s finding because the jury was in the best position to assess witness credibility and to resolve conflicts in the evidence. See Williams v. State, 270 S.W.3d 112, 114 (Tex.Crim.App.2008). We .define mental retardation as a disability characterized by: (1) “significantly subaverage” general intellectual functioning; (2) accompanied by “related”-limitations in adaptive functioning; (3) the onset of which occurs prior to the age of 18, Hunter, 243 S.W.3d at 666 (citing Ex parte Briseno, 135 S.W.3d 1, 7 (Tex.Crim.App.2004)). In weighing evidence as indicative of mental retardation, fact finders in the criminal trial context may also focus upon other evidentiary factors. See id. at 666-67. Both, parties presented substantial evidence relevant to the question of whether Appellánt is mentally retarded. Appellant’s experts and the State’s expert relied on much of the same evidence, although they reached different conclusions. Cunningham, a clinical and forensic psychologist, testified for the defense that Appellant is mildly mentally retarded. Proctor, also a clinical and forensic psychologist, testified for the State that Appellant is not mentally retarded but is within the low range of borderline intellectual functioning.- 1. Intellectual functioning Significantly, subaverage intellectual functioning is generally characterized by a full-scale IQ score of about 70 or below. See Ex parte Hearn, 310 S.W.3d 424, 428 (Tex.Crim.App.2010) (citing the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders). There is a margin of error of approximately five points in assessing IQ. Id. Thus, a score may be approximately five points higher or lower than the subject’s actual IQ. Id. In assessing the validity of an IQ test score,'fact finders may generally consider the effect of matters that could detract from the over-all validity of the score obtained, such as malingering, depression, lack of concentration, and test obsolescence, but such considerations do not warrant adding or subtracting from an IQ score. See Ex parte Cathey, 451 S.W.3d 1, 5 (Tex.Crim.App.2014). The record reflects that Appellant completed six IQ assessments from the time he was sixteen to the time of trial. In 1981, the school system evaluated him-for special education placement. At that time Appellant obtained an IQ score of 65 on the Wechsler Intelligence Scale for Children — Revised (“WISC-R”). While in prison in 1991, Appellant obtained an IQ score of 73 on the Wechsler Adult Intelligence ' Scale-Revised (“WAIS-R”). In May 1993, again while in prison, Appellant obtained an IQ score of 76 on the WAIS-R. Appellant also completed a Beta-II test while in prison, but because it measured non-verbal abilities only, the testifying experts did not give weight to the results of that test in forming their opinions. In April 2012, while in jail awaiting trial in this case, Appellant obtained an IQ score of 73 on the Wechsler Adult Intelligence Scale Fourth Edition (“WAIS-IV”), administered by the defense’s expert, Dr. James Underhill, a clinical psychologist. The State’s expert, Proctor, administered another WAIS-IV on June 12, 2012, and Appellant obtained an IQ score of 72. Both State and defense experts concluded that there was no evidence that. Appellant malingered when he took the IQ tests. However, Proctor expressed concern that the IQ test he administered was the only IQ test that had been accompanied by a separate test of effort, which was the most reliable way to know whether Appellant had given good effort during the IQ testing. Proctor acknowledged that previous test administrators did not note any concerns with Appellant’s efforts and that some administrators had indicated that Appellant appeared to exert good effort during the testing. Proctor stated, however, that personal observation was not the best way to measure effort. Proctor acknowledged that Appellant gave good effort during the tests that Proctor administered. Proctor also acknowledged that Appellant’s first IQ score of 65, obtained when Appellant was sixteen years old, fell within the range of mild mental retardation. However, Proctor did not believe that this score accurately represented Appellant’s level of intellectual functioning at the time of the offense and trial. Proctor attributed the variation between the 1981 score of 65 and the more recent scores either to a. possible lack of effort during the first test, or to the possibility that the score accurately reflected Appellant’s level of in- ■ tellectual functioning in 1981, but his cognitive functioning had continued to develop and had moved beyond the range of mild mental retardation by the time of the later IQ tests. Cunningham and Proctor both testified that mild mental retardation is not necessarily a lifelong diagnosis and that a person can outgrow it or develop through it in some cases. Both State and defense experts concurred that full-scale IQ' scores have a confidence interval of approximately five points, meaning that a test subject’s actual IQ is somewhere within a range that extends approximately five points below the score and five points above the score. Un-derhill and Cunningham testified for the defense that it was just as likely that Appellant’s IQ was any number within the range as it -was that Appellant’s IQ was the IQ score actually obtained. Proctor, however, testified that Appellant’s IQ was most likely to be the - score actually obtained or one of the numbers closest to it. The further away the' numbers in the range were from the score actually obtained, the less likely it was that those numbers represented Appellant’s true IQ. Thus, Proctor testified, Appellant’s full-scale IQ score of 72 signified a range of approximately 67 to 77, but Appellant’s IQ was more likely to be 71 or 73 than to be 68 or 76. Proctor and Cunningham concurred that the WAIS-R was normed in 1978, and so when Appellant took that test in 1991 and 1993, his' scores were inflated by the Flynn effect. See Cathey, 451 S.W.3d at 6 n.8 (citing Alan S. Kaufman, IQ Tésting 101, 203 (2009), for its explanation of the Flynn effect ¿s the phenomenon of obsolete norms inflating IQ scores as time passes' from the date an IQ test was standardized). Cunningham opined that Appellant’s 1991 and 1993 scores should be adjusted downward by 0.3 points for every year that passed between the norming date and the date the test was administered. Cunningham based his opinion on the American Association on Intellectual and , Developmental Disabilities’s (“AAIDD’s”) recommendation that such a revisión was appropriate for an IQ score and on a similar recommendation in the WAIS-III téchnical manual. Cunningham also noted that studies of WAIS-R scores for mildly mentally retarded subjects had found that the scores were distorted when compared with scores obtained contemporaneously from other measures of intellectual functioning. Cunningham stated that because of this problem, Professor James Flynn had written that a WAIS-R score near 70 is so defective that it “should simply be set aside because of the difficulty in understanding” what it means, but that if-the score had to be used, it should be lowered by four or five points. This revision would be in addition to any downward revision for the Flynn effect.' Therefore, Cunningham opined, Appellant’s 1991 IQ score of 73 was closer to 64 and his 1993 IQ score of 76 was closer to 66. Based on all of Appellant’s IQ scores over the years, Cunningham concluded that Appellant’s actual IQ was likely to be between 65 and 73. Therefore, he opined, Appellant had a disability characterized by significantly sub-average intellectual functioning. Proctor disagreed with Cunningham’s precise downward revision of the WAIS-R scores. He noted that the test publisher had acknowledged the Flynn effect but had not recommended adjusting scores according to a particular formula. Proctor stated that when the accuracy of a score is suspect, the best practice is to rely on a score obtained from a different, non-suspect, testing instrument. See Cathey, 451 S.W.3d at 5-6 (“The preferred solution to an outdated IQ score is not to start subtracting from that score, it is to retest with a more recently normed IQ test.”). Thus, Proctor opined, Appellant’s IQ is best represented by the recent IQ scores obtained from the WAIS-IV. Proctor stated that the WAIS-IV was published in 2008 and therefore it was not out-of-date when it was administered in 2012, and moreover the June 2012 test was the only IQ test accompanied by a separate effort test. Thus, Proctor testified that Appellant’s IQ scores of 73 and 72 were the most reliable indicators of Appellant’s cognitive functioning. Proctor testified that* based on the “practice effect,” he would have expected Appellant’s score on the June 2012 test to be higher than his score on the April 2012 test. Proctor noted that, while he was administering the June test to Appellant, Appellant told Proctor he was worried about the upcoming trial. Proctor observed that Appellant appeared to be somewhat distracted at times. Proctor stated it was possible that Appellant’s test score was somewhat lower as a result of Appellants being worried and distracted. Proctor did not know whether Appellant had also been worried when Underhill tested him in April 2012. Proctor stated that, based on the IQ score of 72, Appellant’s true IQ is between 68 and 77, but it is most likely close to 72. Proctor opined that, although a case could be made that Appellant’s IQ score placed him within the range for mild mental retardation, Appellant’s level of intellectual functioning was better characterized as borderline. Defense expert Underhill opined that the IQ score of 73 that Appellant obtained on the April 2012 WAIS-IV “could go either way.” Although Underhill had not administered a separate effort test, he stated that, based on Appellant’s performance on the “reliable digit span” portion of the IQ test and Underhill’s personal observations of Appellant’s cooperation, mood, and demeanor during testing, Appellant had made a good effort. Underhill testified that, particularly in light of the confidence interval, this IQ score alone did not answer the question of whether Appellant’s intellectual functioning was most accurately characterized as mildly mentally retarded or borderline. 2. Adaptive functioning Adaptive behavior or adaptive functioning refers to the ordinary skills that are required for people to function in their everyday lives. Cathey, 451 S.W.3d at 19. The determination of mental retardation in the context of a criminal trial is complicated by the problems associated with retrospective assessment and the well-known consequence of a diagnosis of mental retardation — exemption from the death penalty. Id. “Both experts and those answering questions about a person’s adaptive functioning may exhibit significant conscious or unconscious bias in addressing this issue.” Id. A significant impairment in adaptive behavior may be viewed as the extent to which an individual has required assistance to carry out age-appropriate activities. Id. at 23. Cunningham testified that the Diagnostic and Statistical Manual of Mental Disorders — Fourth Edition — Text Revision (“DSM-IV-TR”) and the AAIDD’s user’s guide (“AAIDD manual”) identify ten or eleven domains of adaptive functioning, depending upon whether “health and safety” is regarded as a single domain or as two separate domains. Cunningham identified eleven domains, while Proctor identified ten. Cunningham testified that in recent editions of the AAIDD manual, the criteria are grouped into three categories: conceptual, social, and practical. See, e.g., Hearn, 310 S.W.3d at 428 & n. 9. Cunningham and Proctor concurred that a person must demonstrate significant deficits in two or more domains of adaptive functioning in order to be diagnosed as mildly mentally retarded. See, e.g., Atkins, 536 U.S. at 309 n. 3, 122 S.Ct. 2242. Cunningham testified that, on behalf of the defense, Dr. Thomas Oakland administered the Adaptive Behavior Assessment System — Second Edition (“ABAS-II”) to Appellant’s mother, Dorothy Hicks; sister, Jackie Griffin; brother, Willie Griffin; and maternal aunt, Illian Kenon. Oakland also administered the ABAS-II to Appellant’s ex-wife, Alycia Mason, and Copelyn. Cunningham testified that the results obtained from Appellant’s family members varied greatly from the results obtained from Mason and Copelyn. The family members’ scores ranged from 40 to 55, while Mason’s and Copelyn’s scores ranged from 75 to 105, To explain this disparity, Cunningham testified that it was possible that family members had underestimated Appellant’s abilities because of the pending litigation, but that it was also possible that Mason and Copelyn had overestimated Appellant’s abilities ■ because they did not want to appear to have been romantically involved with a mentally retarded person. Cunningham also acknowledged that Hicks and Kenon had answered the questions based on their recollections of Appellant’s functioning as a seventeen-year-old, which was problematic because adaptive behavior instruments are not meant to be completed retrospectively, and Appellant was about forty-six years old when the ABAS-II was administered. Therefore, Cunningham did not place much weight on the ABAS-II scores but instead relied primarily on witness interviews and records. Cunningham testified that he assessed Appellant's adaptive functioning by reviewing available records of Appellant’s academic history and other records that he deemed informative'of Appellant’s ability to' function in the community, Cunningham also administered the Wide Range Achievement Test 4 (“WRAT-IV”), which he described as a test of functional academic literacy and capability, and the Reynolds Intellectual Assessment System (“RIAS”), which he described as' being similar to an IQ-test; Cunningham interviewed Appellant for five hours. He also interviewed Copelyn; Hicks; Jackie; Willie; Appellant’s former neighbors, Pat and Nancy Roman; and Appellant’s former employer, Eddie Smith. Proctor testified that he did not administer the ABAS-II because he could not find a reliable historian who had recent, frequent contact with Appellant. He opined that the- scores Oakland obtained from Appellant’s family members were too low to be consistent with mild mental retardation; they were more consistent with severe or moderate mental retardation. Proctor did not think that the ratings Copelyn provided to Oakland were inflated, but he thought that they were problematic because Appellant had been in jail for approximately two years when Copelyn provided them, Therefore, like Cunningham, Proctor assessed Appellant’s adaptive functioning based on witness interviews and records rather than scores on an adaptive functioning inventory. In preparing his report' concerning Appellant’s adaptive functioning, Proctor interviewed 'fourteen people, including the seven people Cunningham had interviewed. Proctor did not give any weight to his interviews with Hicks, Jackie, and Willie. Proctor stated that when he interviewed them, it was apparent that they had already decided what they wanted to tell him. They provided, narrative accounts about Appellant’s abilities and deficits, but they would not answer Proctor’s questions. Hicks and Jackie would change the subject rather than answer a question directly. Willie ended the conversation when Proctor began to ask him questions. Proctor gave more weight to his interview with Copelyn. Proctor opined that Copelyn gave a “fairly balanced” impression of Appellant. She was willing to acknowledge Appellant’s deficits, and she did not say implausible things or overemphasize Appellant’s strengths. Cunningham identified four domains of adaptive functioning in which Appellant had significant - deficits: functional academic skills, work, self-direction, and social interpersonal relationships. With respect to Appellant’s functional academic skills, Cunningham opined that ' Appellant’s WRAT-IV and RIAS scores were consistent with mild mental retardation. Cunningham noted that the RIAS was twelve years old when he administered' it to Appellant in 2012. Therefore, he opined, the score of 74 should be lowe