## IN THE COURT OF CRIMINA L A PPEA LS OF TEXA S NO. WR-75,105-02

E X PARTE RANDALL WAYNE MAYS, Applicant
ON APPLICATION FOR WRIT OF HABEAS CORPUS CAUSE NO. B-15,717 IN THE 392 N D 

### JUDICIAL DISTRICT COURT

HENDERSON COUNTY K E L L E R 

### , P.J., filed a dissenting opinion in w hich S L A U G H T E R 

### , J., joined. The Court imposes the wrong remedy w hen i t g rants relief on Applicant’s intellectualdisability claim without h aving allowed that claim to be tested in an adversarial trial before a jury
. This remedy

conflicts with the leg islative decision to require a jury trial in death-penalty

cases. Article 1.13 makes clear that a jury trial cannot be waived

in a death-penalty

case: The defendant in a criminal prosecution for any offense other than a capital felony case in which the state notifies the court and the defendant that it will seek the death penalty shall have the r ig ht, u pon entering a p lea, to waive the rig h t o f trial by jury
.

. . . 1 This reflects a leg islative determination that all f actual issues bearing o n the imposition of the death

1 T E X . C O D E C R

I M . P R O C . art. 1.13(a).MAYS DISSENT — 2

penalty are to be decided by a jury . L og ically , that includes the question of intellectual disability
. Under Atkins v . Virginia , intellectual disability is a defensive issue that, if raised and proven, prevents the imposition of the death penalty
. 2 “ Atki n s a n d its prog eny did not hold that an i n t e l l e c t u a l

- d i s a b i lity determination was something other than a sentencing issue.” 3 W e h ave likene d the issue to an “affirmative defense” that can be litig ated at the punishment stag e of trial and must be proven by

a preponderance of the evidence. 4 A jury finding ag a inst a defendant on intellectual disability can be reviewed for factual sufficiency on appeal. 5 I n conducting such a review, we are required to g ive “ g reat deference” to the jury ’s finding and d et e rmine whether the finding is “so ag ainst the g r eat weig ht and preponderance of the evidence so as to be manifestly unjust.” 6 B u t there has b een no jury finding h e re. D espite the fact that Atkins was decided w ell before A p p l icant’s trial, h e did not seek a jury determination of intellectual disability
. Altho u gh t h e standards f

or determining intellectual disability may have chang e d enoug h to j u stify Applicant’s tardy r aising of the c laim, that does not mean we should by pass a jury n o w. I n fact, by passing a jury
on a death-penalty sentencing issue conflicts with the leg islature’s i m p o s i t ion of an unwaivable requirement that a jury d ecide w hether the death penalty should be imposed. Consequently , the proper remedy is to remand for a new punishment hearing a t which the intellectual disability issue can be decided.

2 See Atkins v. Virginia , 536 U.S. 304 (2002).
3 Petetan v. State , 622 S.W .3d 321, 334 (Tex . Crim. App. 2021).
4 Gallo v. State , 239 S.W .3d 757, 770 (Tex . Crim. App. 2007).
5 W illiams v. State , 270 S.W .3d 112, 115 (Tex . Crim. App. 2008).
6 Id.MAYS DISSENT — 3

B e cause the Court reforms the sentence to life instead of remanding f or a jury to consider the issue of intellectual disability , I respectfully dissent. F iled: March 27, 2024 Publish