Gallo, Tomas Raul

In the Court of Criminal
Appeals of Texas
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No. WR-77,940-03
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EX PARTE TOMAS RAUL GALLO,
Applicant

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On Application for Writ of Habeas Corpus
In Cause No. 940093-C
In the 182nd Criminal District Court
Harris County
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YEARY, J., filed a dissenting opinion in which KELLER, P.J., joined.

Once again, in a subsequent post-conviction application for the
writ of habeas corpus raising a claim based on Atkins v. Virginia, 536
U.S. 304 (2002), the Court grants relief to a death-sentenced
defendant—by unilaterally reforming his death sentence to a life
sentence—without taking adequate account of the continually evolving
GALLO – 2

standards for diagnosing intellectual disability (hereafter “ID,” formerly
called “mental retardation”) or the history and current procedural
posture of the case. The Court does this based on its own independent
determination that Applicant suffers from ID. And, since Applicant
committed his capital crime before the advent of life without parole, the
Court reforms his death sentence to a sentence of life with parole.
Once again, I am compelled to observe that the Court’s approach
to this and similar cases is problematic. In making the determination
that Applicant suffers from ID, the Court only applies the most recent
diagnostic manual, the American Psychiatric Association: Diagnostic
and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision
(2022) (hereinafter, DSM-5-TR), without even questioning whether the
criteria announced there actually defines the true threshold for
immunity from the death penalty under the Eighth Amendment of the
United States Constitution. Also, it measures Applicant’s evidence only
by the very forgiving preponderance of the evidence standard, without
any recognition of how anomalous it is to unilaterally grant relief on
such a low threshold of proof given the history and procedural posture
of this case.
Once again, therefore, I am obliged to register my dissent.
I. HISTORY AND PROCEDURAL POSTURE
The United States Supreme Court decided Atkins in 2002, in
which it prohibited the states from executing capital offenders who were
(under the then-current terminology) mentally retarded at the time they
committed their offenses. In doing so, the Supreme Court referenced the
diagnostic criteria for mental retardation contained in the version of the
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DSM that was current at that time: the DSM-IV-TR. American
Psychiatric Association: Diagnostic and Statistical Manual of Mental
Disorders, Fourth Edition, Text Revision (2000). 536 U.S. at 308 n.3. 1
Applicant was tried for this capital offense in 2004, nearly two years
after Atkins was decided, but while the DSM-IV-TR was still the current
diagnostic manual. And indeed, Applicant litigated the issue of his
mental retardation during his 2004 trial. The jury found that he was not
mentally retarded and, in the face of Applicant’s claim that the jury’s
finding was against the great weight and preponderance of the evidence,
this Court upheld that finding on direct appeal, in September of 2007.
Gallo v. State, 239 S.W.3d 757, 769−75 (Tex. Crim. App. 2007).
While the direct appeal was pending, Applicant filed his initial
post-conviction application for writ of habeas corpus, in March of 2007.
In his initial writ application, Applicant did not attempt to relitigate the
merits of his claim of ID. The most that he can be said to have done to
challenge the determination that he is not ID is that he may have once
again challenged the jury’s verdict against him at trial with regard to
that question as having been against the great weight and
preponderance of the trial evidence. 2 To the extent that he might have

1 In describing the diagnostic criteria for mental retardation then
extant, in footnote 3 of Atkins, the Supreme Court seemed to identify the
manual as the DSM-IV, rather than the DSM-IV-TR. But at the same time, in
his opinion for the Court, Justice Stevens gave the copyright date for the
manual as 2000, which corresponds to the DSM-IV-TR. It makes sense that
Justice Stevens would invoke the version of the manual most recent in time to
his opinion in 2002. The DSM-IV copyright date, by contrast, is 1994.

2 In a concurring statement, Judge Price took the position that
Applicant was not really challenging the jury’s finding on that basis. See Ex
parte Gallo, No. WR-77,940-01, 2013 WL 105277, at *3 (Tex. Crim. App. Jan.
GALLO – 4

been reiterating that claim from his direct appeal, this Court rejected it
because it had already been raised and rejected on direct appeal. Ex
parte Gallo, No. WR-77,940-01, 2013 WL 105277, at *1 (Tex. Crim. App.
Jan. 9, 2013) (per curiam order, not designated for publication).
Shortly after the Court’s per curiam order denying Applicant
relief on his initial post-conviction writ application, his state-appointed
initial writ counsel attempted to file a subsequent writ application on
his behalf. Ex parte Gallo, No. WR-77,940-02, 2013 WL 3251436 (Tex.
Crim. App. June 26, 2013) (not designated for publication). Counsel
argued in that pleading that the trial testimony of Dr. George
Denkowski relating to the issue of Applicant’s ID was false. However,
concluding that initial state-appointed counsel had not obtained
Applicant’s permission to file that first subsequent writ, the Court
dismissed the application. Ex parte Gallo, 448 S.W.3d 1, 6 (Tex. Crim.
App. 2014).

9, 2013) (Price, J., concurring) (not designated for publication) (“I agree that
the applicant is not entitled to relief on his first claim, but not because it
amounts to a renewed sufficiency of the evidence claim.”). Instead, Judge Price
believed that what Applicant was really challenging in his first claim was the
admissibility of Dr. George Denkowski’s trial testimony—as a predicate for
alleging, in his second and third claims, that his trial and appellate counsel
had been constitutionally ineffective in failing to likewise challenge the
admissibility of Denkowski’s trial testimony. Id. In any event, my point is that
neither the Court nor Judge Price construed Applicant’s initial writ application
to raise a naked claim of ID, as he does now in his present—but subsequent—
post-conviction writ application. Interestingly, Applicant does plainly raise the
sufficiency issue now, in the second claim of his current subsequent writ
application. This Court did not permit the lower court to proceed to a merits
determination of the second claim, however—presumably because the claim
was raised and rejected on direct appeal. See TEX. CODE CRIM. PROC. art.
11.071 § 5(c); Ex parte Gallo, No. WR-77,940-03, 2017 WL 562724 (Tex. Crim.
App. Feb. 8, 2017) (not designated for publication).
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Then, in November of 2016, the present subsequent application
was submitted, this time with Applicant’s permission. Now, in his first
claim, and for the first time since his trial, Applicant brings a free-
standing claim of ID. Also, in his third claim, he once again challenges
the trial testimony of Dr. Denkowski, contending that it constituted
false evidence. He argues that he may raise this third claim for the first
time in this subsequent writ application based on a new legal
development, occurring since he filed his initial writ application in 2007.
Specifically, in Ex parte Chabot, this Court recognized—for the first
time—that the State’s unknowing use of false or misleading evidence
may constitute a due process violation. 300 S.W.3d 768 (Tex. Crim. App.
2009); see also TEX. CODE CRIM. PROC. art. 11.071 § 5(a)(1) (permitting
courts to address the merits of claims raised for the first time in a
subsequent writ application if the legal basis for the claim was
previously unavailable).
We remanded this subsequent writ application in February of
2017 to allow Applicant to litigate the merits of these two claims. 3 Ex
parte Gallo, No. WR-77,940-03, 2017 WL 562724 (Tex. Crim. App. Feb.
8, 2017) (not designated for publication). At the behest of the parties,
the convicting court has now entered findings of fact and conclusions of
law, recommending that we grant relief on both claims. The convicting
court would have us conclude that Applicant has established the

3 When a convicting court receives a subsequent application for writ of

habeas corpus in a capital case, it must immediately forward it to this Court,
and it may not “take any further action” on that application unless and until
this Court “issues an order finding that the requirements [for proceeding to the
merits of the claims contained therein] have been satisfied.” TEX. CODE CRIM.
PROC. art. 11.071 §§ 5(b), (c).
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diagnostic criteria for ID, under the most recent manual, the DSM-5-TR
(which did not yet exist at the time Applicant filed this subsequent writ
application, in 2016), by a preponderance of the evidence.
Today, the Court uncritically accepts the convicting court’s
recommendation that we conclude—de novo—that Applicant has
established ID, under “the current, medically accepted diagnostic
criteria” and “by a preponderance of the evidence[.]” Majority Opinion
at 3. Based on that conclusion, the Court declares Applicant’s third,
Chabot-based claim, that Dr. Denkowski’s testimony was false, to be
moot. For the following reasons, I dissent to this disposition.
II. WHY DE NOVO REVIEW UNDER ART. 11.071 § 5(a)(1)?
The Court remanded this subsequent writ application to the
convicting court to consider both: (1) Applicant’s false evidence claim,
based upon Denkowski’s trial testimony, and (2) his substantive ID
claim. I joined that order. But in retrospect, it is not clear to me why we
permitted consideration of the ID claim under Section 5(a)(1) of Article
11.071, which requires an applicant to allege a new factual or legal basis
for the claim. 4
I concede that Applicant alleged new facts relevant to his claim
that false evidence may have led to his death sentence. These new facts
include certain developments since Applicant filed his initial writ

4 Section 5(a)(1) of Article 11.071 prohibits courts from even considering

the merits of a claim unless the subsequent writ application “contains
sufficient specific facts” to show that the claim could not have been raised in a
previous writ application “because the factual or legal basis for the claim was
unavailable” at the time the previous application was filed. TEX. CODE CRIM
PROC. art. 11.071 § 5(a)(1).
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application, in 2007, that seriously impugned Denkowski’s methodology
for assessing ID. Indeed, in 2011, Denkowski entered into an agreement
with the relevant professional board “to not accept any engagement to
perform forensic psychological services in the evaluation of subjects for
mental retardation or intellectual disability in criminal proceedings.” Ex
parte Gallo, 2017 WL 562724, at *1; Ex parte Gallo, No. WR-77,940-01,
2013 WL 105277, at *1 (Tex. Crim. App. Jan. 9, 2013).
Applicant also alleged new law relevant to that same claim of
false evidence. The new legal basis that Applicant alleged to satisfy
Section 5(a)(1) of Article 11.071, was the issuance, in 2009, of this
Court’s opinion in Chabot, 300 S.W.3d at 771, which established the
State’s inadvertent use of false testimony as a viable due process claim. 5
So, I understand how the new facts alleged by Applicant might entitle
him to a determination of his false evidence claim in a subsequent writ
application, consistent with Section 5(a)(1), under the new law as
explicated in Chabot.
But Applicant has alleged neither new facts nor new law that

5 See Ex parte Chavez, 371 S.W.3d 200, 205 (Tex. Crim. App. 2012)
(observing that “Chabot was the first case in which we explicitly recognized an
unknowing-use due-process claim; therefore, that legal basis was unavailable
at the time applicant filed his previous application”). In his concurring
statement following the Court’s denial of relief in Applicant’s initial writ
application, Judge Price practically invited Applicant to raise a false evidence
claim in a subsequent writ application. Ex parte Gallo, 2017 WL 562724, at *3.
But Judge Price said nothing about the possibility that Applicant could re-raise
the substantive question of whether he was in fact intellectually disabled at
the time of the offense, or whether the new facts showing Denkowski’s false
testimony somehow authorize this Court to embark upon a de novo
determination of the issue of Applicant’s ID in a subsequent post-conviction
habeas corpus proceeding.
GALLO – 8

demonstrate the truth of his free-standing claim of ID. The Court should
not allow itself to simply gloss over the distinction between a showing
that a witness might have testified falsely about an issue and a showing
that the correct resolution of the issue has been definitively
demonstrated, one way or the other. It is at least unclear to me that the
new facts impugning Denkowski’s trial testimony should, by themselves,
authorize us, under Section 5(a)(1), to conduct a de novo review of
whether Applicant was ID at the time of his offense. And Applicant does
not allege any other new facts that would justify re-addressing that issue
even though it has already been determined by the jury at his trial.6
Moreover, Chabot does not provide new law with respect to the
substantive question whether Applicant was ID at the time he
committed his offense. Therefore, the new-law exception to the
prohibition against our addressing a claim that was or should have been
raised previously does not apply to that substantive issue—at least not

6 The exception to the general prohibition against subsequent writ
applications that is embodied in Section 5(a)(1) is, after all, a claim-specific
exception. See TEX. CODE CRIM. PROC. art. 11.071 § 5(a)(1) (requiring an
applicant to show 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 previously unavailable) (emphasis added). That an applicant can
demonstrate new facts and/or new law relevant to one specific claim—for
example, the unknowing use of false evidence, under Chabot—does not entitle
him to also raise other claims that involve different legal questions and/or for
which his new facts do not make out a prima facie case for relief. See Ex parte
Oranday-Garcia, 410 S.W.3d 865, 868 (Tex. Crim. App. 2013) (recognizing
that, under Section 5(a)(1) of Article 11.071, “a subsequent writ applicant must
allege facts sufficient to make out at least a prima facie case for relief under
whatever new law he is attempting to invoke”).
GALLO – 9

based on Chabot. 7
I now regret having joined the Court’s 2017 order to the extent
that it authorized the convicting court to address the merits of
Applicant’s first claim. Ex parte Gallo, 2017 WL 562724, at *1. 8
III. WHY A PREPONDERANCE STANDARD?
I presume that because the Court believes Applicant is properly
proceeding on his free-standing ID claim under Section 5(a)(1), it
measures the merits of that claim by a preponderance-of-the-evidence
standard. 9 But because I now disagree that Applicant has alleged any
relevant new law with respect to that claim, nor has he alleged new facts

7 Because they were decided after Applicant filed this subsequent writ

application in 2016, Applicant could not have invoked the subsequent United
States Supreme Court decisions in Moore v. Texas, 581 U.S. 1 (2017), or Moore
v. Texas, 586 U.S. ___, 139 S. Ct. 666 (2019). And while Hall v. Florida, 572
U.S. 701 (2014), had been decided, Applicant does not explicitly identify it as a
new legal basis to conduct a de novo review of the issue of his ID, under Section
5(a)(1) of Article 11.071. Perhaps he may raise the issue in yet another
subsequent writ application, but he has alleged no new legal basis for a de novo
determination of ID in the present pleading.

8 The Court has said that, even after it has remanded a subsequent writ

application under Article 11.071, Section 5(c), for the convicting court to
develop the facts, see note 3, ante, we remain at liberty to revisit the propriety
of the remand once the case returns to us. See Ex parte Hood, 211 S.W.3d 767,
773 (Tex. Crim. App. 2007) (“If we determine that [the requirements of Section
5(a) of Article 11.071] are not met, we must dismiss the [subsequent]
application, even if we had previously remanded the claim on the basis of an
initial determination [under Section 5(c)] that the requirements had in fact
been met.”).

9 After all, a subsequent capital habeas applicant who can show that his

claim is predicated on new law or new facts that he could not have raised in an
earlier writ application should not be bound to produce proof any greater than
an initial habeas applicant ordinarily would, typically, a preponderance of the
evidence. E.g., Ex parte Torres, 483 S.W.3d 35, 43 (Tex. Crim. App. 2016).
GALLO – 10

that would necessarily authorize us to conduct a de novo review of
anything more than the Chabot-based false-evidence claim, I am
convinced that applying a preponderance standard is inappropriate.
Although Applicant raised ID at trial, he failed to raise it again
as a substantive issue in his initial writ application. Without new law or
compelling new facts to authorize Applicant to raise the issue in a
subsequent writ, having failed to raise it in his initial writ application
when he could have, it would seem that Applicant should have to satisfy
Section 5(a)(3) of Article 11.071. 10 This Court has construed that
provision to require a showing, by clear and convincing evidence, that
“no rational jury would fail to find” an applicant to be ID. Ex parte Blue,
230 S.W.3d 151, 162 (Tex. Crim. App. 2007). It seems to me that, if the
Court is going to entertain the merits of the free-standing ID claim at
all, it should apply the Blue standard. And I am far from sure I believe
Applicant has satisfied that standard, under any view of the case.
IV. WHY THE DSM-5-TR?
The diagnostic manual with reference to which the United States
Supreme Court first determined that execution of the mentally retarded
violates the Eighth Amendment, in Atkins, was the DSM-IV-TR, which
issued in 2000. That was still the current manual at the time of
Applicant’s trial, when the issue of his ID was first litigated. The DSM-

10 Under Section 5(a)(3) of Article 11.071, in order to raise a claim in a

subsequent writ application, an applicant must allege “sufficient specific facts”
to show, “by clear and convincing evidence, [that,] but for a violation of the
United States Constitution[,] no rational jury would have answered in the
state’s favor one or more of the special issues that were submitted to the jury”
under the relevant statute governing capital punishment proceedings. TEX.
CODE CRIM. PROC. art. 11.071 § 5(a)(3).
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IV-TR was still the manual in effect when we determined that the
evidence was factually sufficient to support the jury’s ID verdict on
direct appeal, in 2007. By the time Applicant filed this subsequent
application, in 2016, however, the applicable diagnostic manual was the
DSM-5, from 2013.
Today this Court determines that Applicant is intellectually
disabled according to the diagnostic criteria from an even more recent
manual, the DSM-5-TR, copyright date 2020. But as I have elsewhere
argued:
changes in the manuals should not be thought to
automatically translate into a national consensus about
the tolerance of the death penalty under the Eighth
Amendment. Just because the professional consensus
defining intellectual disability (if that is even what the
manuals reflect[11]) has evolved, that does not necessarily
mean that society’s standard of decency pertaining to the
propriety of the death penalty has evolved to the same
extent. It seems to me that whether society’s standard has
also evolved remains to be determined, either by this Court
or by the United States Supreme Court.

11 The successive manuals may not even accurately reflect the
consensus of the psychiatric profession itself, much less the consensus of
society. It has recently been observed that “[e]ven seemingly small changes to
the [DSM] manual ([e.g.], to symptomatology of previously included disorders)
can have a substantial impact on increasing the number of people who would
receive a diagnosis[,]” and thus “lead to overdiagnosis[.]” Lauren C. Davis, et
al., Undisclosed Financial Conflicts of Interest in DSM-5-TR: Cross Sectional
Analysis 384 BMJ 5 (2024), https://dx.doi.org/10.1136/bmj-2023-076902. For
this Court to uncritically adopt the latest expression of the apparent consensus
of the psychiatric community as to the appropriate diagnostic criteria for ID,
overinclusive though that expression may be, constitutes an abdication of the
Court’s judicial role, as required by the United States Supreme Court, to
determine the consensus of American society with respect to who may and may
not be executed for a capital crime consistent with the Eighth Amendment.
GALLO – 12

Ex parte Long, 670 S.W.3d 685, 686 (Tex. Crim. App. 2023) (Yeary, J.,
dissenting) (citing Ex parte Segundo, 663 S.W.3d 705, 712−15 (Tex.
Crim. App. 2022) (Yeary, J., dissenting)). 12 It is not at all clear to me
that a diagnosis of ID under the most recent manual necessarily means
that the death penalty is constitutionally unacceptable.
V. WHY NOT RESOLVE THE FALSE EVIDENCE CLAIM?
This Court has occasionally conducted a de novo resolution of the
issue of ID in post-Atkins cases in which the issue was first resolved by
a jury at the trial level. I have long urged the Court to explicitly
determine whether the proper disposition of such post-Atkins-tried
habeas cases ought to be “to remand the case to the convicting court for,

12 Moreover, at a certain point, this endless revisiting of the same issue

becomes simply intolerable. Suppose a capital defendant were to raise ID at
trial, and that all of the expert testimony at trial with respect to ID was
predicated on the then-current version of the DSM—let’s say, the DSM-IV-TR.
Suppose that the jury rejected the defendant’s ID claim. Suppose, then, that
on appeal the defendant argued that the jury’s rejection of his ID claim was
against the great weight and preponderance of the evidence. Suppose, also,
that during the interim between trial and appeal, a new diagnostic manual
issued—the DSM-5. Which diagnostic manual should this Court then rely on
in making the appellate determination whether the jury verdict was against
the great weight and preponderance of the evidence?
Suppose, finally, that the defendant were to bring a claim in his initial
post-conviction writ application, asking this Court to re-determine the
question of his ID de novo, and that by this time the DSM-5-TR has come out:
Should the Court even entertain such a claim, and if so, must we apply the
DSM-5-TR? Will we have to once again re-examine the ID issue, de novo, in a
subsequent writ application whenever the DSM-6 comes out? And then again
when the DSM-6-TR issues? When will it end? As I observed in Segundo, “it
violates at least the spirit, if not the letter, of Article 11.071’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.” 663 S.W.3d at 716 (Yeary, J., dissenting).
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if not an altogether new punishment hearing before a jury, at least
another jury determination of the ID issue[.]” Ex parte Lizcano, 607
S.W.3d 339, 341 (Tex. Crim. App. 2020) (Yeary, J., dissenting). See also
Segundo, 663 S.W.3d at 711−12 (Yeary, J. dissenting); Long, 670 S.W.3d
at 686 (Yeary, J. dissenting). The Court continues to avoid addressing
this question.
Were the Court today to limit its consideration to the merits of
Applicant’s third claim—the Chabot-based false evidence claim—and
then go on to grant relief on that basis, I presume this would be exactly
the way it would dispose of the case: to send it back to the trial court for
a new punishment hearing (or at least a new hearing to resolve the ID
claim) in the trial court, 13 unpolluted by the alleged false evidence. Ex
parte Ghahremani, 332 S.W.3d 470, 483 (Tex. Crim. App. 2011). In my
view, the Court should limit its review of this subsequent writ
application to Applicant’s third claim and, in the event that it should

13 In Lizcano I observed:

The procedures governing the determination of the ID issue at
trial remain wholly court fashioned. Despite our most earnest
entreaties, the Texas Legislature has yet to produce any
legislative guidance. See In re Allen, 462 S.W.3d 74, 53−54 (Tex.
Crim. App. 2015) (“In terms of issues surrounding intellectual
disability, we still find ourselves in the same ‘interregnum’ that
existed in 2004. * * * We now make explicit what we before
expressed only tacitly: Legislation is required.”) In the absence
of legislative guidance, perhaps this Court would be free to
remand the cause, not for an entirely new punishment
proceeding under [TEX. CODE CRIM. PROC. Article] 44.29(c), but
for a new jury determination of the ID issue.

607 S.W.3d at 341 n.7.
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determine that claim to have merit, remand to the trial court for further
proceedings.
VI. CONCLUSION
In brief, the Court mistakenly addresses the merits of Applicant’s
free-standing ID claim and employs the wrong standard, as well as the
wrong diagnostic manual, to resolve that claim. What it should do
instead is to simply address Applicant’s Chabot-based false evidence
claim and, if it should find merit there, remand his case for a new ID
hearing in the trial court. Otherwise, the Court should deny relief.
Because the Court instead—once again—simply grants relief, without
taking adequate account of the continually evolving standards for
diagnosing intellectual disability or paying heed to the history and
procedural posture of the case, I respectfully dissent.

FILED: April 17, 2024
PUBLISH