WR-13,374-05
In the
Court of Criminal Appeals
For the
State of Texas

No. 0314483
In the 185th District Court
Of Harris County, Texas

BOBBY JAMES MOORE
Applicant
V.
THE STATE OF TEXAS
Respondent

RESPONDENT’S BRIEF

KIM K. OGG
District Attorney
Harris County, Texas
TOM BERG
First Assistant District Attorney
Harris County District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
Tel.: 713/755-5826
FAX No.: 713/755-5809
Counsel for the State of Texas

 TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................................ 2
INDEX OF AUTHORITIES........................................................................................................... 4
IDENTITY OF THE PARTIES AND COUNSEL ........................................................................ 7
STATEMENT OF THE CASE....................................................................................................... 9
ISSUE PRESENTED .................................................................................................................... 10
STATEMENT OF FACTS ........................................................................................................... 10
SUMMARY OF THE ARGUMENT ........................................................................................... 12
ARGUMENT ................................................................................................................................ 14
I.An emerging doctrine of "unacceptable risk" and the Eighth Amendment must be
considered by the Court ............................................................................................................ 14
A. States possess limited flexibility to define intellectual disability for Capital
Sentencing ........................................................................................................................ 15
B.. Courts should avoid unique tests that distinguish between factual and legal
sufficiency. ........................................................................................................................ 17
C. Current clinical standards in Atkins cases demand strict adherence to the
exercise of clinical judgment based upon a thorough and detailed retrospective
analysis. ............................................................................................................................ 18

II. Texas should adopt the DSM-5 defiinition of intellectual disability .................................... 20
A. The DSM-5 definition of intellectual disability is adequately informed by the
medical community .......................................................................................................... 21
B. The DSM-5 requires examination of whether adaptive deficits are "directly
related" to intellectual disability....................................................................................... 22
C. The DSM-5's age of onset criteria avoids the potential "unacceptable risk"
posed by the AAIDD-11's hard age cutoff ....................................................................... 25
2

 PRAYER FOR RELIEF ............................................................................................................... 27
CERTIFICATE OF SERVICE AND COMPLIANCE ................................................................ 29

3

 INDEX OF AUTHORITIES
Cases
Atkins v. Virginia, 536 U.S. 304 (2002) ................................................. 9, 12-13, 16, 18, 28
Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004) ..................... 9-10, 15, 18, 20, 22
Brumfield v. Cain, 135 S.Ct. 2269 (2015) .........................................................................11
Chase v. State, 171 S.3d 463 (Miss. 2015) ........................................................................22
Hall v. Florida, 134 S.Ct. 1986 (2014) ....................................................... 15-17, 19, 24-25
Ladd v. Stephens, 748 F.3d 1986 (2014) ...........................................................................22
Moore v. State, 700 S.W.2d 193 (Tex. Crim. App. 1985) ...................................................9
Moore v. State, No. AP-74,059, slip op., 2004 WL 231323 (Tex. Crim. App. Jan.
14, 2004)(not designated for publication) ........................................................................9
Moore v. Texas, 137 S.Ct. 1039 (2017) ...................................... 9-12, 14-18, 21, 23-24, 27
Ex parte Moore, 470 S.W.3d 481 (Tex. Crim. App. 2015) .....................................9, 11, 17
Petetan v. State, No. AP-77,038, 2017 WL 4678670 (Tex. Crim. App. Oct. 18,
2017)(order, not designated for publication)..................................................................16
Roper v.Simmons, 543 U.S. 551 (2005) ............................................................................17
Van Tran v. Colson, 764 F.3d 594 (6th Cir. 2014) ...........................................................26

4

 Statutes
LA. Code Crim. Proc. art. 905.5.1(H) ...............................................................................22
Rules
37 Tex. Admin. Code § 89.1040(c)(5) ...............................................................................21
Reference Materials

American Assoication on Intellectual and Developmental Disabilites Definition
Manual (AAIIDD, 11th ed. 2010) (AAIIDD-11) ..................................... 16-17, 20-21, 26
Brief of Amici Curia filed in Moore v. Texas by the American Psychological
Assoication, American Psychiatric Association, American Academy of
Psychiatry and the Law, National Association of Social Workers, & National
Assoication of Social Workers Texas Chapter in Support of Petitioner .......................23
Diagnostic and Statistical Manual of Mental Disorders (APA, 5th Ed. 2013) (DSM-5) ............................................................................................................ 13, 15-21, 24-26
Age of Onset and the Developmental Peirod Criterion in The Death Penatly and
Intellectual Disability (Edward A. Pollyway ed. 2015) .................................................26
American Heritage College Dictionary, 401, 1173 (4th Ed. 2002) ....................................23
Atins v. Virgina: Implications and Recommendations for Forensic Practice, 37 J.
OF PSYCHIATRY AND L., 131, 170-71 (2009) .................................................................25
Death Penalty Symposium: United States Supreme Court Makrs Time for a Term
on Capital Punishment (June 28, 2017 4:11pm)
http://www.scotusbog.com/2017/06/death-penalty-symposium-supreme-courtmarks-time-term-capital-punishment. ...........................................................................14

5

 The Relation Between Intellectual Functioning and Adaptive Behavior in the
Diagnosis of Intelelctual Disability, 54 INTELL. & DEV. DISABILITIES, 381
(2016) ............................................................................................................................23
Substantial Guidance Wihtou Substantive Guides: Resolving the Requirements of
Moore v. Texas and Hall v. Florida, 70 VAND. L. REV. 1027 (2017) ...........................14

6

 IDENTITY OF PARTIES AND COUNSEL
BOBBY JAMES MOORE (“the applicant”)

COUNSEL FOR THE APPLICANT:
Patrick F. McCann
THE LAW OFFICES OF PATRICK F. MCCANN
700 Louisiana Street
Suite 3950
Houston, Texas 77002
Telephone: 713-223-3805
writlawyer@justice.com
Clifford M. Sloan
Donald P. Salzman
Lauryn K. Fraas
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
1440 New York Avenue NW
Washington, DC 20005
Telephone: 202-371-7000
cliff.sloan@skadden.com
Warren S. Huang
Layne E. Kruse
Anne M. Rogers
NORTON ROSE FULBRIGHT US LLP
Fulbright Tower
1301 McKinney Street, Suite 5100
Houston, TX 77010
Telephone: 713-651-3633
warren.huang@nortonrosefulbright.com

7

 COUNSEL FOR THE STATE OF TEXAS:
Tom Berg
First Assistant District Attorney
HARRIS COUNTY DISTRICT ATTORNEY
1201 Franklin Street
Suite 600
Houston, TX 77002
Telephone: 713-274-6037
berg_tom@dao.hctx.net

8

 STATEMENT OF THE CASE

In 1980, the applicant was convicted of capital murder and sentenced
to death. Moore v. State, 700 S.W.2d 193, 195 (Tex. Crim. App. 1985). In
2001, following a grant of federal habeas corpus relief, the applicant was
again convicted of capital murder and sentenced to death. Moore v. State,
No. AP-74,059, slip. op., 2004 WL 231323, *1 (Tex. Crim. App. Jan. 14
2004)(not designated for publication).

Following his 2001 retrial, the

applicant filed a writ of habeas corpus alleging that he is intellectually
disabled and thus ineligible to be executed under Atkins v. Virginia, 536 U.S.
304, 311-21 (2002).
Applying the test it set forth in Ex parte Briseno, 135 S.W. 3d 1, 4-8
(Tex. Crim. App. 2004), the Court of Criminal Appeals determined that the
applicant did not meet his burden of proof to demonstrate that he is
intellectually disabled. Ex parte Moore, 470 S.W. 3d 481, 514-28 (Tex.
Crim. App. 2015). The United States Supreme Court vacated and remanded,
concluding that Briseno was based on superseded medical standards,
application of which created an “unacceptable risk” that a person with
intellectual disabilities will be executed in violation of the Eighth
Amendment. Moore v. Texas, 137 S. Ct. 1039, 1048-53 (2017).

9

 ISSUE PRESENTED
In Moore, the United States Supreme Court determined that the legal
standard for intellectual disability in capital sentencing established in
Briseno was unconstitutional. Now that Briseno has been abrogated, what
new legal standard should the Court of Criminal Appeals establish?
STATEMENT OF THE FACTS
In Moore, the United States Supreme Court vacated this Court’s Ex
parte Moore judgment and remanded for further proceedings.
In Moore's case, the habeas court applied current medical
standards in concluding that Moore is intellectually disabled and
therefore ineligible for the death penalty. The CCA, however,
faulted the habeas court for disregarding [the CCA's] case law
and employing the definition of intellectual disability presently
used by the AAIDD. The CCA instead fastened its intellectualdisability determination to the AAMR's 1992 definition of
intellectual disability that [it] adopted in Briseno for Atkins
claims presented in Texas death-penalty cases. By rejecting the
habeas court's application of medical guidance and clinging to
the standard it laid out in Briseno, including the wholly
nonclinical Briseno factors, the CCA failed adequately to inform
itself of the medical community's diagnostic framework.
Because Briseno pervasively infected the CCA's analysis, the
decision of that court cannot stand.
137 S. Ct. 1039, 1053 (internal quotations and citations omitted).

In

reaching this conclusion, six points of error in this Court’s analysis were

10

 found to demonstrate a “disregard of current medical standards.” Id. at
1049.
First, the nonclinical Briseno adaptive behavior factors were
improperly grounded in “lay stereotypes of the intellectually disabled.” Id.
at 1051-53.
Second, the full range of the applicant’s multiple IQ scores were not
considered. Id. at 1049.
Third, the applicant’s adaptive strengths were overemphasized while
the “medical community focuses the adaptive-functioning inquiry on
adaptive deficits.” Id. at 1050.
Fourth, the applicant’s “improved behavior in prison” was stressed
while clinicians “caution against reliance on adaptive strengths developed
‘in a controlled setting’ as a prison surely is.” Id. at 1050.1
Fifth, departing from clinical practice, the applicant was required to
show that his adaptive deficits were not related to a personality disorder,
thus failing to take into account that intellectually disabled individuals also

1

The scope of this critique is unclear. The United States Supreme Court cites to
evidence of the applicant’s prison behavior considered by the State’s expert, Dr. Kristi
Compton. Id. citing Ex parte Moore, 470 S.W. 3d at 522-24, 526-27. However, the
cited pages of Ex parte Moore also detail the facts of the underlying capital murder, the
applicant’s 1980 trial testimony, and his 1983 Faretta hearing. All three were considered
by Dr. Compton and none occurred in a controlled setting. 470 S.W.3d at 522.
Moreover, the facts of a crime are fair to consider as evidence of adaptive behavior.
Brumfield v. Cain, 135 S. Ct. 2269, 2280-81 (2015).
11

 potentially suffer from a range of mental health or physical co-morbidities.
Id. at 1051.
Sixth, this Court was faulted for concluding that the applicant’s
“record of academic failure, along with the childhood abuse and suffering he
endured, detracted from a determination that his intellectual and adaptive
functioning were related.

Those traumatic experiences, however, count in

the medical community as ‘risk factors’ for intellectual disability.” Id. at
1051 (emphasis in original).
SUMMARY OF THE ARGUMENT
Examination of Moore reveals an emerging legal doctrine of
“unacceptable risk” and the Eighth Amendment. An “unacceptable risk” is
created when a court evaluating an Atkins claim strays from current medical
practice.
The “unacceptable risk” doctrine presents three implications for this
Court to consider as it establishes a new legal standard for intellectual
disability in capital sentencing. First, States must strictly adhere to the
definitions of intellectual disability contained in the most current clinical
manuals. Second, States should not develop bifurcated legal tests that seek
to establish whether an individual is intellectually disabled but it would not
be cruel and unusual punishment to execute them. Third, an emphasis on
12

 current medical practice requires that experts in Atkins litigation exercise
clinical judgment based upon a thorough and detailed retrospective
diagnostic analysis.
This Court should adopt the definition of intellectual disability set
forth in the American Psychiatric Association (APA) DIAGNOSTIC AND
STATISTICAL MANUAL OF MENTAL DISORDERS (APA, 5th ed.
2013) (DSM-5). Application of the DSM-5 criterion will achieve three
important ends. First, the DSM-5 will pass constitutional scrutiny. Second,
the DSM-5 maintains legal precedent by permitting an inquiry into whether
deficits in adaptive behavior are “directly related” to intellectual functioning.
Third, the DSM-5 contains a flexible age of onset criterion that avoids a
possible “unacceptable risk” posed by a hard numerical cutoff.

13

 ARGUMENT
I.

AN EMERGING DOCTRINE OF “UNACCEPTABLE RISK”
AND THE EIGHTH AMENDMENT MUST BE CONSIDERED
BY THE COURT.
In his Moore dissent, Chief Justice Roberts voiced concern that the

States were being provided with little if any guidance as to what legal
standard for intellectual disability in capital sentencing will survive Eighth
Amendment scrutiny.
A second problem with the Court's approach is the
lack of guidance it offers to States seeking to
enforce the holding of Atkins. Recognizing that we
have, in the very recent past, held that “‘the views
of medical experts' do not ‘dictate’ a court's
intellectual-disability determination,” the Court
assures us that it is not requiring adherence “to
everything stated in the latest medical guide”;
States have “some flexibility” but cannot
“disregard” medical standards. Neither the Court's
articulation of this standard nor its application
sheds any light on what it means.
137 S. Ct. at 1058 (Roberts, C.J., dissenting) (internal citations omitted).2

2

Legal commentators have expressed similar frustration. Clinton M. Barker, Note,
Substantial Guidance Without Substantive Guides: Resolving The Requirements Of
Moore v. Texas and Hall v. Florida, 70 Vand. L. Rev. 1027, 1028-69 (2017); Kent
Scheidegger, Death Penalty Symposium: United States Supreme Court Marks Time for a
Term
on
Capital
Punishment
(June
28,
2017
4:11
PM)
http://www.scotusblog.com/2017/06/death-penalty-symposium-supreme-court-markstime-term-capital-punishment.
14

 While it shares these concerns, the State believes a clearer picture of
what the Eighth Amendment and due process require under Atkins is more
apparent than might appear to be the case.
Collectively reading Moore and Hall v. Florida, 134 S. Ct. 1986
(2014), a doctrine of “unacceptable risk” and the Eighth Amendment
emerges.

Moore, 137 S. Ct. at 1045 (application of nonclinical Briseno

factors created an “unacceptable risk” that persons with intellectual
disability would be executed as they were not “aligned with the medical
community’s information”); Hall, 134 S. Ct. at 1989 (failure to take the
standard error of measurement (SEM) into account in evaluating an IQ score
disregarded established medical practice and created an “unacceptable risk”
that persons with intellectual disability would be executed).
This emerging jurisprudence carries three implications for this Court’s
consideration as it establishes a new legal standard to replace Briseno.
A.

States Possess Limited Flexibility To Define Intellectual Disability
For Capital Sentencing.
Moore made clear that States have little to no flexibility or discretion

as to what definitional standard should apply to evaluate an Atkins claim.
The United States Supreme Court determined that the current
American Psychiatric Association (APA) DIAGNOSTIC
MANUAL

OF

AND

STATISTICAL

MENTAL DISORDERS (APA, 5th ed. 2013) (DSM-5) and the
15

 AMERICAN ASSOCIATION

ON

INTELLECTUAL

AND

DEVELOPMENTAL

DISABILITIES DEFINITION MANUAL (AAIDD, 11th ed. 2010) (AAIDD-11)
constitute “the best available description of how mental disorders are
expressed and can be recognized by trained clinicians.” Moore, 137 S. Ct. at
1053 quoting DSM-5 at xli. Thus, Texas must make a binary choice and
pick one of the definitions set forth in the two clinical manuals. See Petetan
v. State, No. Ap.-77,038, 2017 WL 4678670, at *1 (Tex. Crim. App. Oct. 18,
2017)(Newell, J., concurring)(order, not designated for publication) (Moore
requires that Texas “re-work our standard for determining intellectual
disability”).
Moreover, “unacceptable risk” necessitates that the States should
strictly adhere to the definitions of intellectual disability as contained within
the most current versions of the clinical manuals. See Moore, 137 S. Ct. at
1053 quoting DSM-5 at xli (“current manuals offer ‘the best available
description of how mental disorders are expressed and can be recognized by
trained clinicians.’”); Hall, 134 S. Ct. at 1990-91 (employing current clinical
standards); Atkins, 536 U.S. at 308, n.3 (relying on then current clinical
standards).
Conservatively interpreting Moore and Hall, this will mean that every
time the definition of intellectual disability changes in one of the clinical
16

 manuals, the States’ definition of intellectual disability for capital sentencing
will have to change as well.3 As such, the State cautions against adopting a
hybrid Atkins definition that combines elements of the DSM-5 and AAIDD11 as this would likely necessitate more frequent revisions of the law.
B.

States Should Avoid Unique Atkins Tests That Distinguish
Between Factual Sufficiency And Moral Culpability.
The States should not draw a distinction between the factual and legal

sufficiency of intellectual disability, i.e., an individual is intellectually
disabled but it would not be cruel and unusual punishment in violation of the
Eighth Amendment to execute them. See Ex parte Moore, 470 S.W. 3d at
530 (Alcala, J., dissenting)(suggesting a bifurcated Eighth Amendment
inquiry). Moore made clear that all intellectually disabled offenders are per
se protected under the Eighth Amendment. “States may not execute anyone
in ‘the entire category of [intellectually disabled] offenders.’” Moore, 137
S. Ct. at 1051 (emphasis in original) citing Roper v. Simmons, 543 U.S. 551,
563-64 (2005). Indeed, Moore contains an ominous warning regarding the
States’ apparent lack of flexibility: “The medical community’s current

3

This argument is not advanced lightly as it may cause protracted litigation. Hall,
134 S. Ct. at 2006 (Alito, J., dissenting) (identifying “serious practical problems” caused
by “tying Eighth Amendment law” to the changing views of the AAIDD and APA).
However, application of anything other than a current clinical manual appears to pose an
“unacceptable risk” under the Eighth Amendment.
17

 standards supply one constraint on States’ leeway in this area.” Id. at 1053
(emphasis added).
Therefore, a conservative interpretation of Moore and Hall leads to
the conclusion that the States should not become creative and establish new
or unique Eighth Amendment tests that seek to distinguish between factual
sufficiency and moral culpability as these would create a possible
“significant risk” akin to Briseno.

Simply put, for capital sentencing

purposes, an applicant alleging that he is intellectually disabled either
satisfies the burden of proof or he does not.
C.

Current Clinical Standards In Atkins Cases Demand Strict
Adherence To The Exercise Of Clinical Judgment Based Upon A
Thorough And Detailed Retrospective Analysis.
Currency with prevailing clinical standards cuts both ways. All Atkins

experts — for the applicant and the State — must exercise and demonstrate
clinical judgment based upon a thorough retrospective analysis of IQ and
adaptive functioning. DSM-5 at 37 (“Adaptive functioning is assessed using
both clinical evaluation and individualized, culturally appropriate,
psychometrically sound measures. . . . Scores from standardized measures
and interview sources must be interpreted using clinical judgment.”).
Atkins claims rely heavily on consideration of competing opinions
among forensic clinicians. Accordingly, these experts should be expected to
18

 detail with specificity how they exercised clinical judgment and why they
arrived at their professional conclusion. Hall, 134 S. Ct. at 1993 (“Society
relies upon medical and professional expertise to define and explain how to
diagnose the mental condition at issue”). Indeed, in light of the United
States Supreme Court’s emphasis on current clinical standards, it remains
absolutely appropriate for courts to assess the merits of an Atkins claim
through an inquiry into whether the forensic clinicians assessing the
applicant exercised clinical judgment in accord with professional norms. See
DSM-5 at 25 (“In most situations, the clinical diagnosis of a DSM-5 mental
disorder such as intellectual disability . . . does not imply that an individual
with such a condition meets legal criteria for the presence of a mental
disorder or a specified legal standard”).

19

 II.

TEXAS SHOULD ADOPT THE DSM-5 DEFINITION OF
INTELLECTUAL DISABILITY.
For capital sentencing, Texas should adopt the definition of

intellectual disability set forth in the DSM-54 rather than the AAIDD-11.5
Adoption of the DSM-5 will pass constitutional scrutiny and
immediately remedy Briseno. Moreover, the DSM-5 criteria present two
distinct advantages as compared to the AAIDD-11 standard.

First, the

DSM-5 permits Texas to continue to examine whether deficits in intellectual
functioning and adaptive functioning are “related.” Second, the DSM-5

4

Intellectual disability (intellectual developmental disorder) is a disorder with
onset during the diagnostic period that includes both intellectual and adaptive functioning
deficits in conceptual, social, and practical domains. The following criteria must be met:
A.

Deficits in intellectual functions, such as reasoning, problem
solving, planning, abstract thinking, judgment, academic learning,
and learning from experience, confirmed by both clinical
assessment and individualized, standardized intelligence testing.

B.

Deficits in adaptive functioning that result in failure to meet
developmental and socio-cultural standards for personal
independence and social responsibility. Without ongoing support,
the adaptive deficits limit functioning in one or more activities of
daily life, such as communication, social participation and
independent living, across multiple environments, such as home,
school, work, and community.

C.

Onset of intellectual
developmental period.

and

adaptive

deficits

during

the

DSM-5 at 33.
5

Intellectual disability is characterized by significant limitations both in intellectual
functioning and in adaptive behavior as expressed in conceptual, social, and practical
adaptive skills. The disability originates before age 18. AAIDD-11 at 5.
20

 avoids the potential “unacceptable risk” posed by the AAIDD-11 hard age of
onset cutoff.
A.

The DSM-5 Definition Of Intellectual Disability Is Adequately
Informed By The Medical Community.
The DSM is the touchstone for mental health experts. “With

successive editions over the past 60 years, it has become a standard
reference for clinical practice in the mental health field. . . . [T]he current
diagnostic criteria are the best available description of how mental orders are
expressed and can be recognized by trained physicians.” DSM-5 at xli.
Released in 2013, the current edition is the outgrowth of a twelve year
review process involving multiple working groups, public and professional
reviews, and field trials. DSM-5 at 5-10.
The DSM-5 was repeatedly cited as authority by the United States
Supreme Court in Moore. 137 S. Ct. at 1051-52. Indeed, Moore specifically
criticizes Texas for requiring the intellectual disability diagnoses of juveniles
in the criminal justice system to be based on the most current edition of the
DSM, yet applying “superseded standards when an individual’s life is at
stake.” Id. at 1052 (citing 37 TEX. ADMIN. CODE § 89.1040(c)(5)(2015)).
Accordingly, adoption of the definition of intellectual disability as set
forth in the DSM-5 would unquestionably pass Eighth Amendment
“unacceptable risk” scrutiny. Moreover, it would hold the additional benefit
21

 of harmonizing with Fifth Circuit law, as both Louisiana and Mississippi
now apply the DSM-5 criteria in capital sentencing. LA. CODE CRIM. PROC.
art. 905.5.1(H); Chase v. State, 171 S. 3d 463, 471 (Miss. 2015).
B.

The DSM-5 Requires Examination Of Whether Adaptive Deficits
Are “Directly Related” To Intellectual Disability.
The DSM-5 and AAIDD-11 differ in their approach to adaptive

deficits.

The DSM-5 requires: “To meet the diagnostic criteria for

intellectual disability, the deficits in adaptive functioning must be directly
related to the intellectual impairments described in Criterion A.” DSM-5 at
38 (emphasis added). By contrast, the AAIDD-11 possesses no relatedness
requirement. AAIDD-11 at 43; see Moore, 137 S. Ct. at 1055 (Roberts, C.J.,
dissenting)(“By the time Moore’s case reached the CCA, the AAIDD no
longer included the requirement that adaptive deficits be ‘related’ to
intellectual functioning.”).
Texas jurisprudence requires that a habeas applicant seeking Atkins
relief must satisfy the burden of proof that his deficits in intellectual
functioning and adaptive behavior are related. Briseno, 135 S.W. 3d at 7
n.25; Ladd v. Stephens, 748 F.3d 637, 645-46 (5th Cir. 2014). Therefore, to
maintain this precedent, this Court must adopt the DSM-5 criterion.
Additionally, it is recommended that this Court clarify what the
“directly related” inquiry requires in order to avoid an “unacceptable risk”
22

 caused by deviation from prevailing clinical standards.

As the APA

explained in Moore:
The current diagnostic criteria require a connection between the
deficits in intellectual functioning, but that connection need
only exclude the obvious limits imposed by other ailments.6
The most obvious of those include physical disabilities that
impair sensory abilities (e.g., blindness or deafness). Whether a
deficit in adaptive functioning is ‘related’ to intellectual
impairments is a clinical judgment and cannot be reduced to a
layperson’s ‘just so’ stories.
Brief of Amici Curiae American Psychological Association, American
Psychiatric Association, American Academy of Psychiatry and the Law,
National Association of Social Workers, & National Association of Social
Workers Texas Chapter in Support of Petitioner at 9, 137 S. Ct. 1039 (2017)
(No. 15-797). Thus, the “directly related” inquiry is an examination of
correlation and connection, not causation. Marc J. Tasse, Ruth Luckasson &
Robert L. Schalock, The Relation Between Intellectual Functioning and
Adaptive Behavior in the Diagnosis of Intellectual Disability, 54 INTELL. &
DEV. DISABILITIES 381, 387 (2016).7

The focus on “ailments” appears to explain the United States Supreme Court’s
critique that this Court improperly applied the applicant’s “traumatic experiences” during
childhood in its relatedness inquiry. Moore, 137 S. Ct. at 1051.
7
Correlation rather than causation is further borne out by reference to the meaning
of both words. “Directly” means “Without anyone or anything intervening.” “Related”
means “Connected by kinship, common origin, or marriage.” AMERICAN HERITAGE
COLLEGE DICTIONARY, 401, 1173(4th ed. 2002).
6

23

 It is important to note that the United States Supreme Court did not
hold that the relatedness requirement is improper; rather, this Court was
faulted for discounting the role specific co-morbidities and other risk factors
may have played in the applicant’s adaptive deficits. Moore, 137 S. Ct. at
1051. This criticism is easily remedied.
Under Moore and Hall, a “risk” becomes an “unacceptable risk” when
a court’s analysis deviates from current clinical practice.

Therefore, a

court’s ultimate adaptive behavior conclusion must focus less on its own
interpretation of risk factors and co-morbidities and more on a credibility
determination of the expert’s clinical judgment as they assess direct
relatedness when multiple risk factors and co-morbidities are present.8
DSM-5 at 37-40. The scope of that which is professionally required of the
forensic clinician is clear:
[T]he task of determining the cause(s) of what may be an
adaptive deficit is different than determining the cause of
[intellectual disability]. Some behaviors or patterns of behavior
could be related to intellectual difficulties, personality traits,
8

Application of this approach would have avoided the criticism that this Court
failed to consider the full range of the applicant’s IQ scores. Moore, 137 S. Ct. at 1049.
Per Moore, it was improper for this Court to not consider five of the applicant’s IQ
scores. Id. However, a forensic clinician is different. The DSM-5 permits a clinician to
disregard an IQ score, and/or give greater weight to one IQ score over another, if that
decision is grounded in clinical judgment. DSM-5 at 37 (“Clinical training and judgment
are required to interpret test results and assess intellectual performance.”). Therefore, a
clinician can testify as to how they exercised their clinical judgment in assessing a range
of IQ scores, and the court can make an according credibility determination to assess the
merits of the Atkins claim.
24

 both, or a combination of those and other factors. For example,
a person might drop out of school after repeated failure to
succeed no matter how hard he tried. Or a person might drop
out to pursue a criminal lifestyle. Both could be true for the
same person.
Recognizing that deficits in adaptive functioning may
arise from multiple sources, forensic clinicians in Atkins cases
should neither assume that adaptive deficits are invariably
related to intellectual impairments nor exclude intellectual
impairment as an etiological factor in the presence of other
contributing factors. We recommend forensic clinicians
consider and be prepared to explain the role of any intellectual
impairment in the observed deficiency in adaptive functioning.
Review of the trajectory of adaptive deficits over time may
inform this differential.
Gilbert S. Macvaugh & Mark D. Cunningham, Atkins v. Virginia:
Implications and Recommendations for Forensic Practice, 37 J.

OF

PSYCHIATRY & L., 131, 170-71 (2009).
A forensic clinician acting in conformity with prevailing standards
should be up to this task. If they are not, a court should accordingly assess
the lacking persuasiveness of the Atkins claim.
C.

The DSM-5’s Age of Onset Criterion Avoids the Potential
“Unacceptable Risk” Posed by the AAIDD-11’s
Hard
Age
Cutoff.
In Hall, the United States Supreme Court disapproved of the State of

Florida’s strict IQ test cutoff of 70 as it disregarded established clinical
definitions of IQ scores that take the SEM into consideration in a diagnosis
of intellectual disability. Hall, 134 S. Ct. at 2001 citing DSM-5 at 37
25

 (“Intellectual disability is a condition, not a number.”). Nevertheless, the
AAIDD-11 advances a numerical cutoff for age of onset. Although not an
issue in the instant case, age of onset can become a contested matter in
Atkins litigation. Van Tran v. Colson, 764 F.3d 594, 612-19 (6th Cir. 2014).
The DSM-5 requires a showing of intellectual and adaptive deficits
“during the developmental period.” DSM-5 at 33. “Developmental period”
is undefined, although the manual does note that onset during the
developmental period “refers to the recognition that intellectual and adaptive
deficits are present during childhood or adolescence.”

Id. at 38. This

definition thus appears to provide some flexibility for an applicant to
demonstrate that his particular brain development did not end at 18. Stephen
Greenspan, George W. Woods & Harvey N. Switzky, Age of Onset and the
Developmental

Period

Criterion,

in

THE

DEATH

PENALTY

AND

INTELLECTUAL DISABILITY 77, 78 (Edward A. Polloway ed., 2015).
By contrast the AAIDD maintains that 18 is an appropriate cutoff
from both a neurological and social policy perspective. AAIDD-11 at 28.
Among the reasons cited by the AAIDD for a strict cutoff is an issue
inherent in the instant application: “extending to 21 would not be helpful in
accurately diagnosing individuals who have not been diagnosed before 18
because any examination would likely refer to school records.” Id.
26

 While the AAIDD’s policy rationale has merit, it must be viewed
through the lens of the United States Supreme Court’s determination that all
intellectually disabled individuals are per se excluded from the death penalty
Moore, 137 S. Ct. at 1051. As such, the DSM-5 criterion for age of onset
avoids the potential “unacceptable risk” posed by the AAIDD-11’s hard
cutoff.
PRAYER
For the foregoing reasons, the State prays that the Court of Criminal
Appeals establish the DSM-5 diagnostic criterion as the new legal standard
for intellectual disability in capital sentencing.
The applicant has been on death row for more than 37 years. In
addition, the United States Supreme Court’s ruling eliminates consideration
of the applicant’s adaptive behavior demonstrated while he has been
incarcerated for the last three decades. Moore, 137 S. Ct. at 1050.
Furthermore, based on the findings of the habeas court, the clear
import of the Supreme Court’s conclusions in Moore, and our review of the
applicable standards of the DSM-5, the Harris County District Attorney’s

27

 Office agrees that Moore is intellectually disabled, cannot be executed, and
is entitled to Atkins relief.9
SIGNED this 1st day of November, 2017
RESPECTFULLY SUBMITTED,
KIM OGG
DISTRICT ATTORNEY
HARRIS COUNTY, TEXAS
/S/ Tom Berg
Tom Berg
First Assistant District Attorney
Harris County District Attorney
1201 Franklin Street
Houston, TX 77002
713 274-6037
berg_tom@dao.hctx.net
SBOT# 02189200

9

Remand to the habeas court is only appropriate if this Court determines that the
record is insufficient to support a legal conclusion of intellectual disability under the new
diagnostic criteria. See Ex parte Moore, 470 S.W. 3d at 531 (Alcala, J., dissenting)
(urging “remand for the habeas court to reconsider the evidence under the new modified
test that considers current medical standards”).
28

 CERTIFICATE OF SERVICE AND COMPLIANCE
Service has been accomplished by sending a copy of the
accompanying instrument to the applicant’s counsel via e-mail and certified
mail.
Pursuant to TEX. R. APP. P. 9.4, I certify that the instant document
contains 3,841 words.
SIGNED this 1st day of November, 2017
RESPECTFULLY SUBMITTED,
KIM OGG
DISTRICT ATTORNEY
HARRIS COUNTY, TEXAS
/S/ Tom Berg
Tom Berg
First Assistant District Attorney
Harris County District Attorney
1201 Franklin Street
Houston, TX 77002
713 274-6037
berg_tom@dao.hctx.net
SBOT# 02189200

29