## IN THE COURT O F CRIMINA L A PPEA LS OF TEXA S

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E x p a r t e D A V I D W O O D , A p p l i c a n t
O N A P P L I C A T I O N F O R A W R I T O F H A B E A S C O R P U S I N C A U S E N O
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- 2 I N T H E 1 7 1 S T D I S T R I C T C O U R T E L P A S O C O U N T Y

K E L L E R , P . J . , d e l i v e r e d t h e o p i n i o n o f t h e C o u r t i n w h i c h K E A S L E R , H E R V E Y , Y E A R Y , N E W E L L a n d K E E L , J J . , j o i n e d . N E W E L L , J . , f i l e d a c o n c u r r i n g o p i n i o n i n w h i c h K E L L E R , P . J . , a n d H E R V E Y a n d K E E L , J J . , j o i n e d . A L C A L A , J . , f i l e d a d i s s e n t i n g o p i n i o n . W A L K E R , J . , d i s s e n t e d . R IC H A R D S O N , J . , d i d n o t p a r t i c i p a t e . Applicant filed a subsequent application claiming that he was exempt from the death penalty
due to intellectual dis ability and that due process required that he b e given t ools and a hear ing to 1

more fully establish his intellectual-disability claim. We rema nded the case for the habea s court to consider thes e claims. Upon rec eiving the case back from the habea s court, we considere d 2

See A tkins v. Virginia , 526 U.S. 304 (2002). 1
Ex parte W

ood , No. WR -45,746-02, 2009 Tex. Crim. App. Unpub. L EXI S 841 (Tex. Crim. 2 App. Aug ust 19, 2009) (not desig nated f or publication).WOOD — 2

Applicant’s alleg ations and denied relief upon the habea s co u rt ’s finding s and our own revie w. 3
After the Supreme Co u rt ’s decision in Moore v. Texas, Applicant filed a sug g estion that we 4

rec onsider his application on our own initiative. Having revie wed the rec ord i n thi s ca s e in light
of Moore v. Texas and our own subsequent decision of Ex parte Moore , we conclude that no further 5

rec ord deve lopment or fac t findings a re ne eded a

nd that Applicant is not entitled to relief.
The habea s court’s finding s of fac t wer e extensive. Some of those finding s, 280 throug h 322,
discussed the Briseno fac tors and possible alterna te cause s of any adaptive defic its and are no longe r 6
viable afte r the Moore case s. Ne v ertheless, the habea s court’s denial of relief rema ins amply 7 supported by

finding s 1 throug h 279. We further explain our reasoning below. IQ Tests
I n finding s 1 throug h 73, the habea s court dis cu s s ed Ap p l i cant’ s I Q tests. His I Q score s
rang ed from 64 to 11 1

. Howeve r, the only test that the habea s court could conclude was
compre hensive and conducte d proper ly was the one conducte d by Dr. Thomas Allen in 2011. This

Ex parte W

ood , No. WR -45,746-02, 2014 Tex. Crim. App. Unpub. L EXI S 1 0 5 5 (Tex. 3 Crim. App. November

26, 2009) (not desig nated f or publication). 137 S. Ct . 1039 (2017). 4
548 S.W .3d 552 (Tex. Crim. App. 2018). 5 Ex parte Briseno , 135 S.W .3d 1 (Tex. Crim. App. 2004). 6
Fin d i n gs 2 8 0 -322 may well contain some observa tions that are rele vant to the issue of 7 intellectual disability , but we need not addre ss whether any portion of them may be salvag ed beca use the habe as cour

t’s denial of r elief r emains amply supported eve n without all of them.WOOD — 3

test y ielded a full scale I Q score of 75, with a measure m en t er ro r ra n g e of 71 to 80 (-4, +5). 8 9
Be cause the low end of the err or rang e is above 70, Applicant’s score does not meet the first prong of the DSM-5 test for

intellectual disability

(def icits in ge nera l mental abilities). 1 0 Malingering
Moreove r, t he habeas c ourt believe d Dr. Allen’ s testimony that the validi ty of Appli cant’ s

score o f 7 5 was in question due to strong evidenc e that Applicant exerted poor eff ort during the

tests. This belief was supported by the results of two tests for malinge ring —results that wer e not 1 1

even close to what would be expected to show adequate eff ort on the tests. This poor eff ort could
aff ect I Q score s by as much as a standa rd deviation (fifte en points) or more. Applicant’s writing 1 2
and vocabula

ry in various letters also appea red to be at odds with his low test score s. The habea s 1 3

court found that Applicant was malinge ring during the test conducte d by Dr. Allen and that the I Q

The ve rbal c omprehe nsion score w as 80 and the perc eptual re asoning score was 86. 8
See Finding 35. Dr. Allen testified that the standard measure ment err or is not automatically 9 plus or minus five

. He explained tha t the standard measure ment err or is “ calc ulated for y ou in the manual” a

nd depends on statistics. See Moor e , 5 4 8 S .W.3d at 560 (“A score is indicative of intellectual disability if it is 1 0 ‘appr ox imately two standard deviations or more below the population mean, including a marg in for measure ment err or (

generally +5 p o i n t s ). ’ When the standard deviation of the test is 15 and the mean is 100, a sc ore tha t is two standard devia tions below the mean will be “a scor e of 65–75 ( 70 ±5).”) (empha sis added). See also Finding 35.

See Finding s 40-60. 1 1
See Finding 37. Dr. Allen te stified that it would be inappropria te to add 15 points to an 1 2 I Q sco re t o acc ount for lack of eff ort in the testing, but he considere d this lack of eff ort and its possible effec t t o b e a leg itimate conce rn reg arding the validity of Applicant’s score of 75. We likewise decline to add points to an I Q score due to lack of eff ort but consider it as undermining the validity of the scor e as a

n indicator of intellec tual disability

. See Finding s 61-68. 1 3WOOD — 4

score of 75 under -re ports Applicant’s true intelligenc e. 1 4
Be cause the only test with any validity y ielded an I Q score that, even acc ounting for standard

measure ment err or, is not within the rang e for intellectually disabled persons and beca use even that

score appea

rs to understate Applicant ’s i n t el l ige nce due to the strong evidenc e of malinge ring , Applicant has failed the first prong of the intellectual-disability fra mework, and there is no need to conduct a n adaptive- defic its inqui ry
. But even if we we re r equire d to eng ag e in such a n inquiry , 1 5
the habea s court’s finding s make clea r that Applicant also fails to show the req u i s i te adaptive
defic its. Adaptive Deficits
I n finding s 102 throug h 279, the habea s court compre hensively dis cussed Applicant’s 1 6 adaptive f unctioning. The habeas court conclude d that the record fails to support the exi stence of adaptive defic its in the are as of functional aca demics, communication, self-c are , home living 1 7 1 8 1 9

See Finding 70. 1 4 Cf. Moore , 548 U.S. at 562 (“B eca use t he score of 74 is within the t est’s st andar d err or 1 5 of measure ment for intellectual disability (being within five points of 70), we must assess adaptive functioning befor e arr iving at a conclusion reg arding whether Applicant is intellectually disabled.”)

. Finding s 74 throug h 101 discussed and reje cted application of the “F ly nn eff ect,” both as 1 6 a g ener al matter a

nd—even a ssuming its g ener al validity —as applied to Applica

nt’s case

. Finding s 153-68. 1 7 Finding s 169-89. 1 8 Finding s 190-95. 1 9WOOD — 5

and money m an ageme nt, social and interper sonal skills, use of community resour ces, self- 2 0 2 1 2 2
direc tion, work, leisure activities, and hea l t h an d safe ty

. The habea s court also explained

2 3 2 4 2 5 2 6 specific ally why the testimony of Applicant’s witnesses—a fourth g rade teac her, a childhood friend,
and Applicant’s sister—failed to support a conclusion that Applicant suffe red from adaptive
defic its. On this rec ord and under the habea s court’s finding s, Applicant has fa i l ed t o show

2 7 adaptive de ficits indicative of intellec tual disability

. Rem and f

or a Ne w H earing or F ind ings
Sometimes we allow an applicant to put on new evid en ce o n re mand when there was no

rea son or opportunity to put on the rele vant evidenc e ear lier. There is no rea son to allow Applicant

to put on new evidenc e. The Moore decisions chang ed the leg al analy sis for revie wing intellectuald i s ab i l ity claims in Texas, but Applicant’s evidence rela ting to intellectual dis ability is alre ady i n the rec ord. Applicant had plenty of incentive during the proce eding s associate d with his second
habea s application to prese nt all available witnesses to support his intellectual-disability claim. As
the habea s court pointed out, Applicant’s defe nse team was g iven funds to hire an expert witness but

Finding s 196-207. 2 0 Finding s 208-26. 2 1 Finding s 227-29. 2 2 Finding s 230-42. 2 3 Finding s 243-64. 2 4 Finding s 265-72. 2 5 Finding s 273-79. 2 6 Finding s 105-52. 2 7WOOD — 6

failed to offe r expert testimony at the habea s hear ing. Even now, in his sug g estion that the Court 2 8
g rant rehe aring on its own initiative, Applicant does not contend that he s h o u ld be g iven the opportunity to submit new evidence. A rema nd to allow the opportunity to further develop the
evidenc e is simply

unwar rante d.
Nor is a rema

nd war rante d for additional finding s of fac t. Striking finding s 280 throug h 322

wo u ld bring the habea s court’s finding s in compliance with the Moore decisions, and g iven t h e extensive nature of the fac t finding contained in finding s 1 throug h 279, there is no rea sonable
likelihood that the habea s court’s rec ommendation to deny relief would chang e, nor would there be
any support for suc h a cha

ng e in light of

those finding s. Conclusion
We g rant rec onsideration on our own initiative to consider Applicant’s case in light of Moore

v. Texas and Ex parte Moore

. We adopt finding s 1 throug h 279, reje ct finding s 280 throug h 322, 2 9 and deny relief

.

Deliver ed: Dec ember

12, 2018
Publis h

Finding 5 (“A dditionally , althoug h Applicant was provided with funds for an expert, and

2 8 actua lly used those funds, he did not call his ow n expert. I nstead, Applicant attempted to impeach the State’s expert, Dr. Allen, and develop his claim thoroug h Allen’s examination of Applicant. Dr. Allen ag ree d with very

littl e, if a ny of Applica

nt’s asser tions.”). See supra at nn.4-5. 2 9