November 7, 2014`



Texas Court of Criminal Appeals

Ex Parte Cathey

No. WR-55,161-02                 11/5/14


1) When determining whether a death-row defendant was intellectually disabled and therefore exempt from the death penalty, was the habeas trial judge permitted to subtract points from the defendant’s IQ based on the “Flynn Effect,” a phenomenon by which an IQ test that was written in the past tends to inflate the IQ of a present-day test taker?

2) Was a Vineland Adaptive Behavior Scales test, administered retrospectively by asking the defendant’s family members to describe how he used to behave approximately 25 years ago, credible in assessing the defendant’s “deficits in adaptive functioning” as mandated by Atkins v. Virginia, 536 U.S. 304 (2002)?


1) No. Factfinders may consider the Flynn Effect and its possible impact on IQ scores generally, just as they may consider the practice effect, potential malingering, the examiner’s behavior, and so forth, but the IQ score itself cannot be changed.

2) No. The test was not designed to be applied retrospectively, the defendant’s family members had motivation to misremember his behavior, and their answers to the test contradicted other testimony by the family members.

Read the opinion.

Concurrence (Price, J.):

Although the result of the opinion was correct, the court’s adaptive-deficit analysis is unconstitutional in that it is over-inclusive in its consideration of non-scientific, impressionistic considerations. Read the concurrence.


This opinion is the final word on the Flynn Effect in Texas capital cases. Perhaps more importantly, the Court reaffirms that it will strictly scrutinize capital cases and will not let the parties or trial courts run over the actual facts and applicable science to reach a certain result. The Court’s detailed opinion deconstructs many unsupported fact findings so thoroughly that the defendant’s lawyers ought to be embarrassed.




Ex Parte Moss

No. WR-76,635-03                 11/7/14


When a motion to adjudicate was filed and the trial court ordered a capias to be issued the day the defendant’s community supervision ended, but the capias was not issued until after community supervision expired, and the direct appeal was dismissed due to absconding, was the defendant barred from obtaining habeas corpus relief because 1) her claim was procedurally barred or 2) barred by laches?


No to both. Constitutional rights can be forfeited for purposes of habeas corpus, but a lack of jurisdiction cannot. Additionally, no evidence or trial records have been lost in this case, which is all that is needed to determine jurisdiction, so laches does not apply to this case. Read the opinion.


Courts, prosecutors, and probation officers should have figured out by now that they cannot wait until the last day of probation to do something about violators. Had the motion to adjudicate been timely filed, a capias might have timely issued. That said, the facts of this case show the need for a statute of limitations in Article 11.07 similar to that used in federal courts. The Court’s adoption of the laches doctrine has done little to remedy a steady flow of writs filed by inmates who slept on their rights and have nothing to lose by clogging up the courts with claims that are difficult to accurately adjudicate due to the passage of time. 




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