Mays, Randall Wayne

In the Court of Criminal
Appeals of Texas
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No. WR-75,105-02
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EX PARTE RANDALL WAYNE MAYS,
Applicant

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On Application for Writ of Habeas Corpus
In Cause No. B-15,717
In the 392nd District Court
Henderson County
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YEARY, J., filed a dissenting opinion in which KELLER, P.J., joined.

Once again in this subsequent capital post-conviction application
for writ of habeas corpus, brought under Article 11.071 of the Texas
Code of Criminal Procedure, the Court concludes that an applicant is
intellectually disabled and grants him relief in the form of reformation
of his sentence from death to life without parole. TEX. CODE CRIM. PROC.
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art. 11.071. But the Court does so, once again, without addressing
several very important predicate issues. I will endeavor here to describe
them.
Applicant was tried and convicted of capital murder in 2008 for
an offense committed in 2007. This all happened six years after the
United States Supreme Court issued its opinion in Atkins v. Virginia,
536 U.S. 304 (2002), which decided for the whole country that execution
of a capital offender who was intellectually disabled (hereafter, “ID,” nee
mentally retarded) at the time of his offense would violate the Eighth
Amendment. But Applicant did not raise ID at trial. And he did not raise
it on appeal. Nor did he even raise it in his initial post-conviction
application for writ of habeas corpus, filed in 2010—eight years after
Atkins was decided. Instead, Applicant has waited to raise the issue of
ID until now, in a subsequent post-conviction application for writ of
habeas corpus filed in 2020, some twelve years after his trial and
eighteen years after the Supreme Court’s decision in Atkins.
The Court apparently concludes that Applicant has satisfied the
criteria for a diagnosis of ID as set out in the latest manual of the
American Psychiatric Association: Diagnostic and Statistical Manual of
Mental Disorders, Fifth Edition, Text Revision (2022), or DSM-5-TR. 1

1 The Court declares that Applicant has met “the diagnostic criteria for

intellectual disability under Atkins and Moore. Moore v. Texas, 137 S. Ct. 1039,
1044 (2017); Moore v. Texas, 139 S. Ct. 666 (2019).” Majority Opinion at 5.
Under both Atkins and the two Moore cases, however, intellectual disability
was assessed under earlier versions of the DSM manuals—the DSM-IV-TR
(2000) and the DSM-5 (2013), respectively. The criteria for discerning a
diagnosis of intellectual disability have changed incrementally with each
passing edition of the DSM, and it has become at least marginally less
burdensome for applicants to satisfy the criteria with each successive manual.
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But because Applicant did not raise this issue in his initial writ
application, the Court applies the higher standard for relief announced
first in Ex parte Blue, 230 S.W.3d 151, 162−63 (Tex. Crim. App. 2007),
and finds that Applicant has satisfied that standard. Majority Opinion
at 5.
Under Blue, an applicant can successfully raise ID for the first
time in a subsequent writ application under section 5(a)(3) of Article
11.071, but only if he can demonstrate that he satisfies the diagnostic
criteria for ID so clearly and convincingly that no rational factfinder
would fail to find him intellectually disabled. Blue, 230 S.W.3d at 162;
TEX. CODE CRIM. PROC. art. 11.071 § 5(a)(3). This was designed to be an
onerous standard. Blue’s trial occurred before Atkins was decided,
however, and so he could not have raised ID then. The Blue standard
was announced in the context, then, of an applicant who could not have
raised ID at his trial, but who could have raised it in his initial writ
application, but did not do so there, and then finally raised ID for the
first time in a subsequent writ application, such as the one the Court
addresses today.
First: Procedural Default? This case is not, then, in the same
procedural posture as Blue. Because Applicant was tried eight years
after Atkins, unlike Blue, he could have raised ID at trial. And yet, this
Court still has not explicitly said why an applicant in this posture should

In any event, the recommended findings of fact and conclusions of law proposed
by the parties and adopted by the convicting court exclusively applies the
diagnostic criteria from the most recent DSM-5-TR, under which it has become
easier still to establish ID.
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not be deemed simply to have procedurally defaulted his ID claim by
failing to litigate it at trial. See Ex parte Jean, 667 S.W.3d 766, 766−69
(Tex. Crim. App. 2023) (Yeary, J., dissenting). 2 As in Jean, the Court
grants relief without even addressing this threshold procedural default
issue.
Second: The Correct Diagnostic Criteria? Perhaps it may be
argued (although the Court today does not) that Applicant has waited
so long to raise his ID claim because he could not, in any event, have
satisfied the diagnostic criteria under earlier DSM manuals. But of
course, that begs the question of whether the DSM manuals—that have
issued since Atkins was decided—represent anything more than just the
normative values of the psychiatric community. The argument assumes
that the more recent DSM manuals also accurately capture the so-called
national consensus with respect to society’s tolerance of the death
penalty. See Ex parte Segundo, 663 S.W.3d 705, 712−15 (Tex. Crim. App.

2 In Jean, as in this case, the applicant could have raised ID at trial, but

unlike in this case, the applicant in Jean raised ID for the first time in his
initial post-conviction writ application. In dissent there, I advocated
potentially imposing a higher burden of proof on such an applicant than the
ordinary preponderance standard. 667 S.W.3d at 771. Even so, I also allowed
that the heightened burden “might even be something somewhat less onerous
than the Blue standard for subsequent writs,” but I argued that it should be
“at least marginally more taxing than the ordinary preponderance standard.”
Id.
Blue was tried before Atkins was decided, and he was therefore not in a
position to raise ID until his initial writ application. Applicant could have
raised ID at trial, or in his initial writ, but he did neither. Because Applicant
was tried after Atkins, he could have raised ID at two points previous to this
subsequent application—at trial and in his initial writ application. He should
therefore be required at least to satisfy the Blue standard.
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2022) (Yeary, J., dissenting). 3 With each successive DSM manual,
though, it seems to me that the courts should be required to determine
whether ID, as described by each successive, less rigorous diagnostic
criteria, still corresponds to society’s own so-called “evolving standards
of decency” for Eighth Amendment purposes. Id.
Third: Has Applicant Indeed Satisfied Blue? Even assuming
that (1) Applicant has not procedurally defaulted his right to relief—at
least under the Blue standard—and that (2) his claim of ID ought
properly to be measured under the diagnostic criteria adopted by the
latest DSM manual, it is still not at all clear to me that Applicant is
entitled to relief. At this late date, Applicant has admittedly presented
substantial evidence from which a rational factfinder could conclude, by
almost any level of confidence, that he was intellectually disabled as of
the time of his offense. But the proffer of sufficient—or even
substantial—evidence to prove ID does not alone satisfy the Blue
standard.
The question is not what a factfinder could rationally conclude

3 Indeed, 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.
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from the proffered evidence, as in a legal sufficiency analysis. Rather,
the question that Blue requires us to ask is whether no rational
factfinder would fail to draw the ID conclusion in the face of the
evidence. Blue, 230 S.W.3d at 162. And, before granting relief, the Court
must conclude that the evidence is clear and convincing in this regard.
Id. I am not convinced to that level of confidence that no rational jury
would fail to find Applicant ID based upon his evidence, even under the
more forgiving DSM-5-TR diagnostic criteria.
It is true that the convicting court judge, in adopting the proposed
findings and conclusions of the parties, declared herself to be convinced
by clear and convincing evidence that Applicant has demonstrated his
ID. 4 But convincing the judge, even to that high level of confidence, is
not the same as presenting ID evidence that is so clear and convincing
that no rational factfinder would fail to find ID. 5 Cf. Ex parte Harleston,
431 S.W.3d 67, 91−92 (Tex. Crim. App. 2014) (Price, J., concurring)
(observing that what is required by the so-called “actual innocence”
standard of Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996),
is not whether the convicting court judge finds by clear and convincing
evidence that he would not have convicted the applicant, but whether it

4 See Findings of Fact and Conclusions of Law, Conclusions ## 6, 11 &

13, at 24−25 (concluding that Applicant has shown by clear and convincing
evidence that he suffers from sub-average intellectual functioning, adaptive
deficits, and onset of same during the developmental period).

5 The Court says it bases its disposition not just on the convicting court’s

recommended findings of fact and conclusions of law, but also on its “own
review[.]” Majority Opinion at 5. But the Court does not convey what it is about
Applicant’s evidence that would convince it, by clear and convincing evidence,
that no rational jury would fail to find him to be intellectually disabled. Suffice
it to say, I am not so convinced.
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finds new exculpatory evidence to be so clear and convincing that no
reasonable juror would have convicted him); Ex parte Navarijo, 433
S.W.3d 558, 573−74 (Tex. Crim. App. 2014) (Price, J., concurring) (“That
the convicting court chose to believe the complaining witness’s
recantation in this case . . . does not necessarily compel us to answer the
dispositive question—‘Would no reasonable juror convict?’—in the
applicant’s favor.”). The Court should apply the proper standard.
Fourth: The Proper Remedy? Finally, it remains unclear to
me whether, even if Applicant has met whatever burden he should have
to shoulder to prove intellectual disability, the proper disposition is for
this Court to just unilaterally reform his death penalty to life without
parole. The Court has still not expressly addressed the question of
whether the more appropriate disposition, at least for capital cases that
were tried post-Atkins, might be to remand the case to the convicting
court to empanel a new jury to determine the issue of intellectual
disability there, in the first instance. Ex parte Lizcano, 607 S.W.3d 339,
340−41 & n.6 (Tex. Crim. App. 2020) (Yeary, J., dissenting); Segundo,
663 S.W.3d at 711−12 (Yeary, J., dissenting); Ex parte Long, 670 S.W.3d
685, 686 (Tex. Crim. App. 2023) (Yeary, J., dissenting).
For all these reasons, yet again, I must respectfully dissent.

FILED: March 27, 2024
PUBLISH