In the Court of Criminal 

Appeals of Texas

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No. WR-70,963-02

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EX PARTE JUAN RAMON MEZA SEGUNDO,

Applicant

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On Application for a Writ of Habeas Corpus

Cause No. C-3-W011370-0974988-B 

In Criminal District Court No. Three

From Tarrant County

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YEARY, J., filed a dissenting opinion.

In this case, Applicant has filed a subsequent application for writ 

of habeas corpus seeking relief from a judgment in a capital murder case 

in which the death penalty was imposed. TEX. CODE CRIM. PROC. art. 

11.071 § 1. Because it is a subsequent application, it is brought under 

Article 11.071, Section 5(a)(1), of the Texas Code of Criminal Procedure, 
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and it is predicated on an argument that the legal basis for his current 

claim was unavailable on the date the applicant filed his initial 

application. TEX. CODE CRIM. PROC. art. 11.071 § 5(a)(1). 

Today the Court excuses Applicant from execution on the basis 

that he is intellectually disabled. The United States Supreme Court has 

said that the Eighth Amendment to the United States Constitution 

places a substantive restriction on the State's power to take the life of a 

person with intellectual disability (née mental retardation; hereafter, 

“ID”), no matter how heinous his offense may be. Atkins v. Virginia, 536 

U.S. 304 (2002). There are several reasons I find myself compelled to 

dissent to the Court’s order, a few of which I will catalogue here.

I. Background

Applicant was tried, convicted, and sentenced to death in 

December of 2006, some four and a half years after Atkins was decided. 

At the guilt phase of his trial, evidence was adduced showing that, in 

1986, Applicant broke into a small home in northwest Fort Worth, where 

he raped and then strangled to death an 11-year-old girl named Vanessa 

Villa. He was not immediately caught. Instead, Vanessa’s rape and 

murder remained unsolved until 2005, when a routine database check 

revealed that Applicant’s DNA profile “matched” the profile of semen 

found inside Vanessa’s vagina after her death. Additional evidence at 

both the guilt and punishment phases of trial revealed that, before he 

was apprehended, Applicant had similarly raped and killed two women, 

in 1994 and 1995; that he sexually assaulted and choked two other 

women in 1987 and 1990; and that he molested his girlfriend’s five-yearold daughter “in the late 1980’s.” Segundo v. State, 270 S.W.3d 79, 83–
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84 (Tex. Crim. App. 2008).

Applicant’s previous attempts to raise ID have not met with 

success. His trial lawyers’ own experts seem to have concluded that he 

did not meet the diagnostic criteria for ID. But they nevertheless asked 

for an Atkins instruction at the conclusion of the punishment phase of 

his trial. When the trial court denied this request, Applicant did not even 

challenge that ruling on direct appeal to this Court. Segundo v. State, 

270 S.W.3d 79 (Tex. Crim. App. 2008). 

Applicant did renew his ID claim in his initial post-conviction 

application for writ of habeas corpus, which was filed under Article 

11.071 of the Code of Criminal Procedure, in 2008. But this Court denied 

that claim in 2010, after he was afforded a full and fair opportunity to 

air it. Once again, Applicant’s own expert concluded that he was not

intellectually disabled under the then-relevant diagnostic criteria. Ex 

parte Segundo, No. WR-70,963-01, 2010 WL 4978402 (Tex. Crim. App. 

Dec. 8, 2010) (not designated for publication).

Now, for a third time, Applicant is given a chance to present his 

ID claim, in a subsequent post-conviction application for writ of habeas 

corpus. Ex parte Segundo, No. WR-70,963-02 (Tex. Crim. App. Oct. 31, 

2018) (not designated for publication) (remanding subsequent writ 

application under Article 11.071, Section 5, in light of the opinion of the 

United States Supreme Court in Moore v. Texas, 137 S. Ct. 1039 (2017), 

to allow him once again to pursue his ID claim). This Court stayed an 

execution date to allow him to pursue this claim. See Ex parte Segundo, 

No. WR-70,963-02, 2018 WL 4856580 (Tex. Crim. App. Oct. 5, 2018) (not 

designated for publication) (ordering stay); Ex parte Segundo, No. WR-
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70,963-02 (Tex. Crim. App. Oct. 31, 2018) (not designated for 

publication) (remanding subsequent writ application under Article 

11.071, Section 5, in light of the opinion of the United States Supreme 

Court in Moore v. Texas, 137 S. Ct. 1039 (2017), to allow him once again 

to pursue his ID claim). I guess the third time is a charm: The Court 

concludes that Applicant has finally managed to prove his ID claim, and 

it vacates his death sentence and consigns him to a sentence of life in 

the penitentiary (in Applicant’s case, with the possibility of parole, since 

his offense occurred so long ago—it predates the imposition of 

mandatory life without parole as the only alternative to the death 

penalty for capital offenders not sentenced to death).

II. Proper Forum for ID Determination?

First of all, given the procedural history, I am not at all certain 

that this Court should be the one—if any—to make the determination 

whether Applicant fits the diagnostic criteria for ID in the first instance. 

The claim has already been fully litigated in the trial court, albeit 

unsuccessfully. If there is some reason to question the legitimacy of the 

trial-level resolution of Applicant’s ID claim, then it is at least arguable 

that the case should be returned to the trial court for another 

determination of whether he is intellectually disabled, in that forum, 

subject only to this Court’s deferential review on appeal.

As I have recently argued in similar contexts, this Court should 

not exercise its role of “ultimate fact-finder” to grant relief in postconviction habeas proceedings without first deciding the propriety of 

doing so. See Ex parte Lizcano, 607 S.W.3d 339, 340–41 (Tex. Crim. App. 

2020) (Yeary, J., dissenting) (because the issue of intellectual disability 
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was initially litigated in the trial court, asking: “May this Court simply 

re-visit the ID issue sua sponte and make a merits determination de 

novo? Or is the proper disposition, instead, to remand the case to the 

convicting court for, if not an altogether new punishment hearing before 

a jury, at least another jury determination of the ID issue?”); Ex parte 

Williams, No. WR-71,296-03, 2020 WL 7234532 (Tex. Crim. App. Dec. 9, 

2020) (Yeary, J., dissenting) (not designated for publication) (same). 

Because the Court continues to grant relief on these claims of ID while 

skirting this issue, I once again respectfully dissent.

III. Evolved Professional Diagnostic Standards Not Shown to 

Reflect Society’s Standards

There is a second, more fundamental reason I disagree with the 

Court’s summary disposition in this case. On this third go-round, all of 

the mental health experts—including Applicant’s expert from his initial 

writ application—for the first time rely upon only the most recent

diagnostic manuals for ascertaining ID: (1) the APA, Diagnostic and 

Statistical Manual of Mental Disorders (5th ed. 2013) (hereinafter, 

“DSM-5”), and (2) the American Association on Intellectual and 

Developmental Disabilities (11th ed. 2010) (hereinafter, “AAIDD–11”). 

Neither of these current manuals represents the precise state of the 

diagnostic criteria for ID as it existed in 2002, when Atkins was decided. 

See Atkins, 536 U.S. at 308 n.3 (describing “mental retardation” 

consistent with the diagnostic criteria contained in the American 

Association of Mental Retardation’s manual, Mental Retardation: 

Definition, Classification, and Systems of Support (9th ed. 1992) 

(hereinafter, “AAMR-9th ed.”); and the text revision of the Diagnostic 
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and Statistical Manual of Mental Disorders (4th ed. 2000) (hereinafter 

“DSM-IV-TR”)). Nor do they represent the diagnostic criteria that were 

in place when Applicant was evaluated for ID for purposes of his trial, 

in 2006, and again for purposes of his initial writ application, in 2009.1

In fact, Applicant’s expert during the initial habeas proceedings—

forensic psychologist Dr. Stephen A. Thorne—has only changed his mind 

now because of the shift in diagnostic criteria in the newest manuals, 

having previously concluded, based upon their predecessors, that 

Applicant was not intellectually disabled.

But, as Justice Alito has observed, “[u]nder our modern Eighth 

Amendment cases, what counts are our society’s standards—which is to 

say, the standards of the American people—not the standards of 

professional associations, which at best represent the views of a small 

professional elite.” Hall v. Florida, 572 U.S. 701, 731 (2014) (Alito, J., 

dissenting). As Chief Justice Roberts has similarly remarked, “this 

Court’s precedents . . . establish[] that the determination of what is cruel 

and unusual rests on a judicial judgment about societal standards of 

decency, not a medical assessment of clinical practice.” Moore v. Texas, 

137 S. Ct. 1039, 1057–58 (2017) (Roberts, C.J., dissenting). Indeed, in 

determining the extent to which Eighth Amendment “standards of 

decency” may have “evolved,” the Supreme Court has consistently 

“looked not to our own conceptions of decency, but to those of modern 

American society as a whole.” Stanford v. Kentucky, 492 U.S. 361, 369 

(1989). At most, Atkins may be said to have prohibited the death penalty 

1 By 2006, the 10th edition of the AAMR had come out. But the AAIDD11th ed. did not come out until 2010, and the DSM-5 did not come out until 

2013.
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for those who were “mentally retarded” based upon a national consensus 

about what society believed that meant in 2002. To the extent that the 

mental health community has evolved its definition of ID since that 

time, we have no assurances that society’s standards of decency have 

also evolved to the same extent.

At the hearing on Applicant’s initial writ application, conducted 

in 2009, Dr. Thorne testified that Applicant met none of the three prongs 

to establish ID under the DSM-IV-TR, which was the diagnostic manual 

in effect at that time: (1) significant subaverage general intellectual 

functioning, (2) significant adaptive deficits, and (3) onset before age 

eighteen.2 With respect to the first criteria, Dr. Thorne observed that 

Applicant had been administered the Wechsler Adult Intelligence 

Scale–Third Edition (WAIS-III) in 2006, by an expert for Applicant’s 

trial attorneys named Dr. Kelly Goodness. Applicant achieved a 

composite IQ score of 75 at that time. Dr. Thorne also noted, however, 

that there was a “significant difference” between Applicant’s verbal IQ 

sub-score (70) and his performance IQ sub-score (85) on the WAIS-III, 

and that “in some ways that 85, given [Applicant’s] background, is 

probably a more accurate reflection of his true intellectual ability.” 

Dr. Thorne himself administered the Wechsler Adult Intelligence 

Scale–Fourth Edition (WAIS-IV) in 2009, obtaining a composite IQ score 

for Applicant of 72. Although he explained that the WAIS–IV “doesn’t 

actually break down the score into verbal and non-verbal anymore like 

2 See DSM-IV-TR at 41 (“The essential feature of Mental Retardation is 

significantly subaverage general intellectual functioning . . . that is 

accompanied by significant limitations in adaptive functioning . . . [and] onset 

must occur before age 18 years[.]”).
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the WAIS-III did[,]” he noted that Applicant still scored significantly 

lower on the verbal subtests, “where his lowest scores [on the WAIS-IV] 

came from.” Dr. Thorne suspected that the higher performance scores 

on both the WAIS-III and WAIS-IV more accurately reflected 

Applicant’s true level of general intellectual functioning. This 

impression was reinforced by the fact that, from records and his clinical 

evaluation of Applicant, Dr. Thorne saw no adaptive deficits, much less 

onset before 18.

The DSM-IV-TR, which was the manual in circulation at the time 

of Dr. Thorne’s 2009 evaluation of Applicant, contains the following 

statement about “scatter in subtest scores”:

When there is significant scatter in the subtest scores, the 

profile of strengths and weaknesses, rather than the 

mathematically derived full-scale IQ, will more accurately 

reflect the person’s learning abilities. When there is a 

marked discrepancy across verbal and performance scores, 

averaging to obtain a full-scale IQ score can be misleading.

DSM-IV-TR at 42. Without going into the same level of detail, the DSM5 also nevertheless makes the consistent observation that “highly 

discrepant individual subtest scores may make an overall IQ score 

invalid.” DSM-5 at 37. These precatory observations—particularly from 

the DSM-IV-TR—would seem to support Dr. Thorne’s conclusion, during 

the initial writ proceedings in 2009, that Applicant did not, in fact, suffer 

from ID.

Nevertheless, in his affidavit in support of Applicant’s current 

subsequent writ application, Dr. Thorne has explained why, in view of 

the current manuals, he has now changed his mind about (what would 

now be called, in the DSM-5, at 37) Applicant’s “deficits in general 
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mental abilities”:

While it remains my opinion that the observed discrepancy 

(across IQ measures) in verbal and non-verbal abilities is 

relevant for consideration, it should also be emphasized 

that guidelines (published after this examiner’s 2009 

evaluation of [Applicant]) set forth in the AAIDD Manual 

(2010) do explicitly state that essential to the application 

of the definition of Intellectual Disability is an assumption 

that “within an individual, limitations often coexist with 

strengths”. Such definitional guidance, when combined 

with relevant DSM-5 criteria deemphasizing the role of IQ 

scores in the assessment/diagnosis of intellectual disability 

(DSM-5 criteria does not, in fact, reference a specific IQ 

benchmark, nor does it include the aforementioned 

language about “scatter” among subtest scores or 

verbal/non-verbal discrepancies), has contributed to 

clinicians placing greater emphasis on an individual’s 

“global” IQ score (as opposed to focusing on strengths that 

may be reflected in the aforementioned discrepancy 

between an individual’s verbal and non-verbal abilities).

Without going into the same level of detail, Dr. Thorne has also now said 

that the current diagnostic framework for assessing “impairment in 

everyday adaptive functioning” (DSM-5 at 37) has led him to “no longer 

[be] confident” in his previous conclusion that Applicant does not suffer 

from adaptive deficits under of the second prong of the standard for ID.

With respect to adaptive deficits, the State’s current expert, 

neuropsychologist Dr. Matthew A. Clem, has concluded—again, under 

the current diagnostic criteria as reflected in the latest manuals—that 

Applicant satisfies the second prong of the standard for ID, in that he 

has shown adaptive limitations at least in the “conceptual” domain, if 
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not the other two.3 Dr. Clem makes it clear, however, that he would not 

likely have concluded the same under the old diagnostic regime:

It is currently my opinion that the presence of significant 

deficits in the conceptual domain is supported. While 

[Applicant’s] deficits in this area previously may not have 

been considered as rising to the significant level, this has 

changed in light of the current state of the diagnostic 

nomenclature, research, and case law pertaining to 

intellectual disability. * * * Taken in total, his functional 

academic abilities would have been previously viewed as 

representing a deficit, but not at the significant level. This 

is due in part to consideration of his low level of education 

(he left school in the 8th grade). In other words, his deficits 

in functional academics would have been viewed as at least 

partially attributable to his lack of education rather than 

being fully explained by intellectual deficiency, with the 

expectation that his functional academic abilities would 

have been better had he benefitted from a more typical 

education. In the current conceptualization of intellectual 

disability, however, a lack of education is not viewed as a 

differential consideration regarding intellectual disability, 

but rather as one of many potential risk factors for such. In 

other words, Mr. Segundo’s lack of education is currently 

conceptualized as having placed him at increased risk for 

intellectual disability rather than being viewed as a 

potential alternate explanation for his deficits.

Thus, by all appearances, the latest expert assessment that Applicant 

3 Under the last manual, the DSM-IV-TR, at 41, in order to find 

significant limitations in adaptive functioning, a diagnostician would have to 

find deficits in at least two of the following eleven domains: “communications, 

self-care, home living, social/interpersonal skills, use of community resources, 

self-direction, functional academic skills, work, leisure, health, and safety.” 

The DSM-5 has altered this scheme so that it is now necessary to find deficits 

in at least one of three domains: “conceptual (academic),” “social,” and 

“practical.” DSM-5 at 37–38.
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indeed suffers from ID is almost wholly contingent on diagnostic criteria 

that were not previously accepted—at least not definitively—by the 

relevant mental health community.

The presumption that underlies the Court’s summary grant of 

relief today seems to be that what constitutes ID is a static thing; that 

the current manuals identify threshold criteria for ID and comprise the 

substantive benchmark for determining the scope of Atkins’s Eighth 

Amendment prohibition. Moreover, the presumption continues, any new 

developments in the diagnostic criteria merely signal a new way to 

describe a condition that society already agrees insulates its sufferer 

from capital punishment.4 But when the diagnostic criteria outlined in 

the manuals are revised so drastically and pervasively that what it even 

means to be intellectually disabled has substantively changed, that only 

4 It is true that, in Moore, the Supreme Court observed:

“[E]ven within Texas’ criminal-justice system, the State requires 

the intellectual disability diagnosis of juveniles to be based on 

‘the latest edition of the DSM.’ 37 Tex. Admin. Code § 

380.8751(e)(3) (2016). Texas cannot satisfactorily explain why it 

applies current medical standards for diagnosing intellectual 

disability in other contexts, but clings to superseded standards 

when an individual’s life is at stake.”

137 S. Ct. at 1052. The suggestion seems to be that the statutory scheme itself 

automatically adopts the latest professional assessment of what it means to be 

ID, and that the “objective indicia” of society’s attitude about executing

intellectually disabled offenders evolves right along with the professional 

assessment adopted under that flexible statutory scheme. Id. But this 

argument completely removes the “objective” from “objective indicia.” Such a 

statutory scheme is wholly predictive; it no longer necessarily describes the 

attitude of society, but prospectively prescribes it. I fail to understand how such 

a scheme any longer reflects the current consensus of society.
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means that the mental health experts’ understanding of the condition 

has evolved. It provides us no assurance that the broader society’s 

tolerance for the death penalty—the nation’s consensus—has evolved 

concomitantly. The burden on a post-conviction habeas applicant to 

present “objective indicia” of society’s intolerance is a “heavy” one. 

Stanford v. Kentucky, 492 U.S. at 373. Applicant has not satisfied it 

here.

IV. Serial Litigation of ID?

The Court has also authorized Applicant to proceed under Section 

11.071, Subsection 5(a)(1), which prohibits granting relief in a 

subsequent writ application unless the applicant can show, among other 

things, that a new legal basis for relief has become available since he 

filed his initial writ application. TEX. CODE CRIM. PROC. art. 11.071, § 

5(a)(1). The new law Applicant relied upon was the Supreme Court’s 

2017 opinion in Moore. But, as far as I can tell, when Dr. Thorne 

concluded in 2009, for purposes of Applicant’s initial writ proceedings, 

that Applicant was not intellectually disabled, he made none of the 

mistakes that the Supreme Court faulted this Court for making in 

Moore.5

5 Dr. Thorne did not ignore the standard error of measurement in 

assessing Applicant’s IQ scores or refuse, based on his IQ scores, to go on to 

consider whether he had adaptive deficits. Moore, 137 S. Ct. at 1049. While he 

may not have had the benefit of all of the current evidence of adaptive deficits, 

Dr. Thorne did not overemphasize Applicant’s perceived strengths to the 

detriment of considering his manifest deficits; nor did Dr. Thorne discount any 

deficits he perceived in Applicant’s adaptive functionality because Applicant 

was imprisoned. Id. at 1050. He did not overtly misidentify certain risk factors 

for ID as reasons, instead, to conclude that Applicant’s adaptive deficits were 

not “related” to his subaverage intelligence. Id. at 1051. Nor did he conclude 

that Applicant failed to show that any deficits were unrelated to some other 
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Dr. Thorne has since changed his diagnosis only because, during 

the interim between Applicant’s initial writ proceeding and this one, the 

manuals have changed. Are we going to re-evaluate and relitigate every 

capital case involving a claim of ID whenever—typically at ten- or 

twelve-year intervals—a revised edition of the DSM or AAIDD manual 

is published? Surely it violates at least the spirit, if not the letter, of 

Article 11.071, Section 5’s abuse-of-the-writ principle to permit this kind 

of serial litigation—rehashing the same issue, over and over—before the 

State may carry out its otherwise legitimately obtained judgment.

V. Conclusion

I respectfully dissent.

FILED: May 25, 2022

PUBLISH

co-existing condition or co-morbidity, such as a personality disorder. Id. He 

made no mention of the disowned Briseno factors. See id. at 1051–52 (rejecting 

the factors identified by this Court in Ex parte Briseno, 135 S.W.3d 1, 8 (Tex. 

Crim. App. 2004), as “an outlier”).