Summary
rejecting a Flynn Effect argument on the grounds that the Flynn Effect would not render the defendant's IQ lower than the cutoff
Summary of this case from Postelle v. CarpenterOpinion
No. WR-49,210-02
Delivered: March 9, 2006. DO NOT PUBLISH.
On Application for Writ of Habeas Corpus in Cause No. 97,424,518 from the 137th District Court of Lubbock County.
PER CURIAM. KEASLER, J., would deny.
ORDER
This is a subsequent application for writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure, Article 11.071, Section 5. Applicant asserts he is mentally retarded and cannot be executed. Applicant was convicted of capital murder on March 23, 1999. We affirmed the conviction and sentence. Salazar v. State, 38 S.W.3d 141 (Tex.Crim.App. 2001). On October 13, 2000, applicant filed his initial application for writ of habeas corpus pursuant to Article 11.071. We denied relief. Ex parte Salazar, No. WR-49,210-01 (Tex.Crim.App. June 6, 2001). Applicant alleges that he is mentally retarded despite earlier tests which indicated that his IQ was 102 and 87. He asserts that these scores on tests long used in the mental health system are significantly flawed and cannot be used to accurately determine mental retardation because of such things as the "Flynn Effect." He attacks the objective standard of one of the elements of mental retardation approved by the Supreme Court of the United States in Atkins v. Virginia, 122 S.Ct. 2242 (2002), as a completely subjective element, which is capable of manipulation by mental health experts and political scientists such as James Flynn. We reject this approach. This Court has established the minimum necessary to establish a prima facie mental retardation claim which can overcome the procedural bar to subsequent applications for writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure, Article 11.071, section 5. In Ex parte Briseno, 135 S.W.3d 1 (Tex.Crim.App. 2004), this Court stated that an applicant had to show that there was some evidence which showed that he had an IQ two standard deviations below the norm (below 70), that he had adaptive behavioral deficits, and that there was an onset of mental retardation before age 18. Applicant has failed to show either that his IQ is below 70 or that there are any adaptive behavioral deficits. In failing to make a prima facie showing of mental retardation, applicant has failed to show he is entitled to consideration of this subsequent claim. This subsequent application is dismissed as an abuse of the writ. The motion to stay the execution is denied. IT IS SO ORDERED.