NO. 36,139-04



Johnson, J., filed a statement concurring in the dismissal of the application, in which Price and Cochran, JJ., join.



I concur in the Court's dismissal of applicant's subsequent application for a writ of habeas corpus that is primarily based on a claim of mental retardation under Atkins v. Virginia, 536 U.S. 304 (2002). While I agree that a remand of a subsequent application raising an Atkins claim is appropriate when an applicant sets out sufficient facts to raise a bona fide claim of mental retardation, in the instant cause applicant has failed to make this threshold showing.

Applicant was convicted of capital murder and assessed the death penalty in 1995. This Court affirmed the conviction. Johnson v. State, No. 72,061 (Tex. Crim. App., September 11, 1996 (unpublished)). Applicant's initial application for a writ of habeas corpus was denied by this Court. Ex Parte Johnson, No. 36,139-01 (Tex. Crim. App., January 28, 1998). His second and third applications were rejected as subsequent applications pursuant to Article 11.071, 5, V.A.C.C.P. on October 7, 1998, and June 9, 1999, respectively. Applicant then filed an application for a writ of habeas corpus in federal district court, and that application was denied November 15, 2001. The United States Court of Appeals for the Fifth Circuit refused to grant a certificate of appealablity, and the United States Supreme Court denied certiorari on April 28, 2003.

Applicant has now filed a fourth application for writ of habeas corpus pursuant to Article 11.071, requesting a stay and alleging that "there is a significant likelihood [applicant] is mentally retarded."

Our habeas corpus statute, Article 11.071, Section 5(a), states that:

a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that . . . the current claims and issues have not been and could not have been presented previously . . . because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application.

The legal basis for an Atkins claim was not available until June 20, 2002. Thus, an applicant making an Atkins claim may be entitled to have the merits of a subsequent writ application considered if his first application had been filed before the Atkins decision was announced.

However, under our case law, there is a second prerequisite under Section 5 before the merits of a subsequent writ can be considered. A subsequent writ must contain "sufficient specific facts" to support an applicant's Atkins claim. A writ application which makes the naked assertion, "I am mentally retarded," or "there is a significant likelihood that [I] am mentally retarded," does not suffice to leap over this second hurdle. The mere assertion of a valid legal claim, unsupported by sufficient specific factual allegations which, if true, would entitle the applicant to relief, is not enough to overcome a Section 5 bar. On the other hand, an applicant is not required to set out within his writ application the detailed facts and record evidence which would prove his mental retardation by a preponderance of the evidence.

The Legislature steered a middle course in the plain language that it chose for Section 5: an applicant must allege "sufficient specific facts" to support his entitlement to bring a claim under newly established law within that writ application. The United States Courts of Appeals for the Fifth and Seventh Circuits have set out the prima facie showing necessary to permit consideration of the merits of a subsequent federal writ:

We understand [it to] be simply a sufficient showing of possible merit to warrant a fuller exploration by the district court . . .. If in light of the documents submitted with the application it appears reasonably likely that the application satisfies the stringent requirement for the filing of a second or subsequent petition, we shall grant the motion. (1)

To fulfill the prima facie requirement for an Atkins claim, I believe that an applicant must, at a minimum, provide evidence of at least one I.Q. test (preferably taken before the age of 18) from which a reasonable trier of fact could conclude that the person is mentally retarded under Atkins. (2) Better yet would be results from more than one such I.Q. tests, coupled with supporting school and medical records, and record evidence or affidavits from qualified experts (or laymen with sufficient personal knowledge of specific conduct) that raise an issue about applicant's lack of adaptive skills and the onset of mental retardation before age 18. (3)

After a careful review of all of the materials submitted by applicant, I conclude that he has failed to meet the threshold factual burden. The evidence he has submitted to this Court consists of two letters from a psychologist concluding that applicant might be mentally retarded and applicant's school grade reports for sixth, seventh, and eighth grades. The psychologist's conclusion "that there is a significantly likelihood that [applicant] is functioning at a Mentally Retarded level" is based on failing grades from applicant's 7th grade year (4) and prior IQ testing that indicated that applicant may have scored as low as 62-65 and as high as 72-75 on the verbal portion of a WAIS-R intelligence evaluation. However, applicant has failed to provide to this Court the results of the other portions of his WAIS-R evaluation, has not alleged any facts relating to a deficit in his adaptive learning skills, and has not provided the results of psychiatric evaluations or testing from his previous incarceration at the Texas Department of Criminal Justice, institutional division.

Although the records submitted to this Court may indicate that applicant's intelligence level may be lower than the average, the "sufficient specific facts" that would support a finding of significantly subaverage general intellectual functioning required under Atkins (5) are not set out in this record. Because of applicant's failure to produce "sufficient specific facts" to support an Atkins claim, I agree with the Court's dismissal of applicant's subsequent writ application as an abuse of the writ under Article 11.071, Section 5(a).

Johnson, J.

Filed: June 6, 2003

Do Not Publish


1. Bennett v. United States, 119 F.3d 468, 469-70 (7th Cir. 1997); Reynes-Requena v. United States, 243 F.3d 893, 898-99 (5th Cir. 2001) (quoting Bennett); see also In re Robert Charles Ladd, No. 03-40534, slip op. at 4 (5th Cir. April 23, 2003) (unpublished); In re Kenneth Wayne Morris, No. 03-20373, slip op. at 2 (5th Cir. April 15, 2003) (unpublished).

2. Of course, if the applicant or his attorney, after a diligent search, are unaware of the existence of any prior I.Q. testing, then other materials supporting a conclusion of "significant subaverage intellectual functioning" may suffice for a prima facie showing.

3. Because the issue is not raised in this case, I do not consider what must be shown in the case of head injury which results in functional mental retardation after the age of 18.

4. While applicant earned Fs in all academic subjects in seventh grade, he earned average grades or better in health, physical education and band. This same document shows that, in sixth grade, applicant earned an A in both spelling and arithmetic, as well as Bs and Cs in all of his other academic courses.

5.  Although the Supreme Court did not define "mental retardation" for purposes of an Eighth Amendment bar upon capital punishment, it did quote two generally accepted mental health definitions:

The American Association of Mental Retardation (AAMR) defines mental retardation as follows: "Mental retardation refers to substantial limitations in present functioning. It is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation manifests before age 18." Mental Retardation: Definition, Classification, and Systems of Supports 5 (9th ed. 1992).

The American Psychiatric Association's definition is similar: "The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). Mental Retardation has many different etiologies and may be seen as a final common pathway of various pathological processes that affect the functioning of the central nervous system." American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 41 (4th ed. 2000). "Mild" mental retardation is typically used to describe people with an IQ level of 50-55 to approximately 70. Id., at 42-43.

Atkins, 536 U.S. at 342, n. 3. In the absence of more specific guidance from the Texas Legislature, these criteria, developed by the mental health field, provide appropriate guidance.