Elizalde, Jr., Jaime

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-48,957-02 EX PARTE JAIME ELIZALDE, JR., Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS FROM HARRIS COUNTY Johnson, J. concurs in the denial of relief, joined by Hervey, Holcomb, and Cochran, JJ. C O N C U R R I N G S T A T E M E N T After a jury found applicant guilty of capital murder and answered the special issues submitted pursuant to Tex. Code Crim. Proc. art. 37.071, the trial court assessed punishment at death. This Court affirmed applicant's conviction on direct appeal. Elizalde v. State, No. 72,813 (Tex. Crim. App. June 19, 1999). Applicant filed his original application for writ of habeas corpus on March 29, 2001. The Court denied that application on April 11, 2001. On January 18, 2006, applicant filed a second application for writ of habeas corpus that alleged that he is mentally retarded and therefore may not be executed. Atkins v. Virginia, 536 U.S. 304 (2002). Applicant's original execution date was set for November 2, 2005, but on October 31, 2005, the trial court entered an order, at the state's request, to modify applicant's execution date and reschedule it for January 31, 2006. In the weeks immediately preceding the original execution date, applicant signed a purportedly inculpatory affidavit that made him a material witness/suspect in another case, and he also raised the issue of his mental retardation for the first time. In Atkins, the United States Supreme Court noted that "any serious disagreement about the execution of mentally retarded offenders . . . is in determining which offenders are in fact retarded." Atkins, 536 U.S. at 317. The Supreme Court, however, left it to the states to develop appropriate enforcement mechanisms to prevent the execution of such individuals. Id. As with any other claim for habeas corpus relief, applicant bears the burden of proving that he is mentally retarded. Ex parte Chappell, 959 S.W.2d 627, 628 (Tex. Crim. App. 1998). A person is considered mentally retarded under Texas law if he is able to demonstrate that he meets the three prongs of the test cited in Briseno: (1) (1) "significantly subaverage general intellectual functioning" (generally, an IQ of 70 or below); (2) "related limitations in adaptive functioning;" and (3) onset of the first two characteristics before age eighteen. Ex parte Briseno, 135 S.W.3d 1, 7-8 (Tex. Crim. App. 2004); see also Hall v. State, 160 S.W.3d 24, 36 (Tex. Crim. App. 2004). Mental retardation is similarly defined under Tex. Health & Safety Code § 591.003(13). Applicant has provided minimal evidence in support of his mental-retardation claim. The only evidence he has presented comes in the form of prison and academic records. In particular, records from the Texas Department of Criminal Justice (TDCJ) indicate that applicant took at least two IQ tests. The first test, the Revised Beta II (a brief screening test) was administered to applicant upon his incarceration at age 18. Applicant scored 60 on the examination, below the presumptively retarded score of 70. Shortly thereafter, prison officials administered the Fair Culture IQ Test, upon which applicant scored 96. In making his mental-retardation claim, applicant also relies on TDCJ disciplinary records, which assess his IQ at 60 and, based on tests of educational achievement, estimate his level of intellectual functioning as being consistent with that of a fourth grader. Applicant also argues that his poor academic performance, which led him to drop out of school before completing the eighth grade, is consistent with characteristics of a mentally retarded individual. Specifically, applicant uses academic records to demonstrate that he had limited academic success and that he failed the seventh grade three times. This information alone, however, does not prove that applicant is mentally retarded. His poor performance in school was attributed by his mother to many absences because of asthma. Applicant worked in the family wrecker business and as a welder. He was married and supported his wife and two children. The state points out that applicant was never diagnosed as being mentally retarded and suggests that applicant's low score on the Beta II is the result of applicant's lack of motivation, poor academic record, or cultural biases. I believe that applicant has failed to make a prima facie showing that his intellectual functioning is significantly sub-average. The second prong of a mental-retardation claim requires analysis of applicant's adaptive- behavior skills. Adaptive behavior refers to "the effectiveness with or degree to which a person meets the standards of personal independence and social responsibility expected of the person's age and cultural group." Tex. Health & Safety Code § 591.003(1). Some persons whose IQs fall within the accepted range of mental retardation are still able to function quite well in society, while others, whose IQs are presumptively not within the range of mental retardation, have maladaptive behaviors to an extent that renders them unable to care for themselves adequately. In Briseno, this Court examined seven factors to gauge the level of an individual's adaptive functioning. (2) However, applicant provides no evidence in the form of medical records, affidavits, or expert testimony to address any of the factors outlined in Briseno. The state, on the other hand, notes that applicant's mother testified at the punishment phase of trial and indicated that applicant was "very active," "well-liked," and "normal" as a child and that he "never had to go the principal's office." The state also presented evidence at trial that applicant was capable of formulating and executing plans for both present and future activities and that applicant was married, employed, and supporting his wife and children. The state places significant emphasis on applicant's actions on the evening of the murder and during his stay in prison. The state also suggests that applicant planned the murders with the help of his father and that he devised a scheme to lure the victims out of the bar before shooting them in the parking lot. There was testimony at trial that applicant had been involved in more than one assault while in custody. Once incarcerated, applicant demonstrated leadership among other inmates by serving as a lieutenant in the Mexican Mafia, the largest prison gang organization. Applicant's sister testified that applicant made an effort to teach middle-school students about the benefits of an education. She testified at trial that applicant is an avid reader who uses the prison law library to advance his own case and cases of fellow inmates. She also indicated that applicant dreamed of becoming a paralegal and working for her in her future law practice. This evidence indicates that applicant has failed to make a prima facie showing that he possesses the requisite limitations in adaptive functioning. Finally, applicant provides no evidence that demonstrates that the characteristics that are typical of mental retardation, as discussed in Atkins and Briseno, had manifested themselves before applicant turned eighteen. The only IQ tests he has presented were administered to him after he turned eighteen. The testimony of those closest to him in his developing years, his mother and sister, made no mention of being mentally retarded or even "slow." Rather, he was described as normal, but in with the wrong crowd. Applicant's case is distinguishable from Atkins. Atkins was convicted on charges of abduction, armed robbery, and capital murder. Atkins, 536 U.S. at 308. The defense relied heavily on one witness, a forensic psychologist who had evaluated the defendant before trial and testified at trial that the defendant had an IQ of 59 and was therefore "mildly mentally retarded." Id. at 308-09. The witness's conclusion was based on interviews with the defendant and people who knew him, a review of school, court, and police records, and the administration of a standard intelligence test. At sentencing, the forensic psychologist reiterated his findings and pointed out that defendant's limited intellect was a "consistent feature throughout his life, and that his IQ score of 59 is not an aberration . . .." Id. at 309. Unlike the defendant in Atkins, applicant's alleged mental retardation was not a "consistent feature" throughout his life; applicant's claim of mental retardation was not raised until after he was sentenced to death. Moreover, applicant has provided no evidence that he possesses limitations in adaptive functioning or that the alleged mental retardation manifested itself during his developmental stages of growth. It is noteworthy that applicant appears to be attempting to manipulate the legal system in order to delay his execution. In his sole ground for habeas corpus relief in this subsequent application, applicant contends that he is mentally retarded and, therefore, may not be executed. The trial court, on October 31, 2005, rescheduled applicant's November 2, 2005, execution date in the interest of justice so that applicant would have ample time to collect evidence and to petition the trial court for funds necessary to hire an expert to support his mental-retardation claim. Instead, applicant took no action for almost three months, even though he was aware that his execution had been rescheduled for January 31, 2006. Now, with only a few days remaining before his scheduled execution, applicant is petitioning this Court for more time to substantiate his mental-retardation claims. Moreover, applicant's instant application for writ of habeas corpus is dated October 26, 2005, seven days before the original execution date. Surely, applicant could have and should have filed his application to this Court at a much earlier date. The date on the instant application for writ of habeas corpus suggests that applicant intended to file a similar claim immediately before the original execution date, but chose not to do so when the trial court modified that date for other reasons. Applicant has not made a prima facie showing that he falls within the parameters of mental retardation. I, therefore, concur in the denial of relief. Johnson, J. Filed: January 30, 2006 Do not publish 1. "This Court has previously employed the definitions of 'mental retardation' set out by the American Association on Mental Retardation (AAMR), and that contained in section 591.003(13) of the Texas Health and Safety Code." Briseno, at 7. 2. The Briseno Court weighed the following factors as indicative of mental retardation: (1) did those who knew the person best during the developmental stage, his family, friends, teachers, employers, authorities, think he was mentally retarded at that time, and if so, act in accordance with that determination; (2) has the person formulated plans and carried them through, or is his conduct impulsive; (3) does his conduct show leadership, or does it show that he is led around by others; (4) is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable; (5) does he respond coherently, rationally, and on point to oral or written questions, or do his responses wander from subject to subject; (6) can the person hide facts or lie effectively in his own or others' interests; and (7) putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose? Briseno, at 8-9.