Gallo, Tomas Raul

• Court: Court of Criminal Appeals of Texas
• Decided: April 17, 2024
• Docket: WR-77,940-03
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-77,940-03

EX PARTE TOMAS RAUL GALLO, Applicant

ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE NO. 940093-C IN THE 182ND CRIMINAL DISTRICT COURT HARRIS COUNTY

Per curiam. YEARY, J., filed a dissenting opinion in which KELLER, P.J., joined. KEEL and SLAUGHTER, JJ., dissented.

OPINION

This is a postconviction application for a writ of habeas corpus filed under Texas

Code of Criminal Procedure Article 11.071, Section 5.

In February 2004, a Harris County jury found Tomas Gallo, Applicant in this case,

guilty of capital murder. Based on the jury’s answers to the special issues set forth in

Article 37.071 and a separate special issue asking whether “the Defendant is a person GALLO—2

with mental retardation,” 1 the trial court sentenced Applicant to death. This Court

affirmed Applicant’s conviction and sentence on direct appeal. Gallo v. State, 239

S.W.3d 757 (Tex. Crim. App. 2007).

Applicant filed his initial 11.071 application in March 2007. Ultimately, the

habeas court entered findings of fact and conclusions of law recommending that this

Court deny relief. Based on the habeas court’s findings and conclusions and our own

review, we denied relief. Ex parte Gallo, No. WR-77,940-01 (Tex. Crim. App. Jan. 9,

2013) (not designated for publication).

In April 2013, the lawyer appointed to represent Applicant in his initial 11.071

proceedings attempted to file a subsequent 11.071 application on Applicant’s behalf. But

he did so “without the applicant’s permission and against the applicant’s will.” Ex parte

Gallo, 448 S.W.3d 1, 2 (Tex. Crim. App. 2014). Accordingly, this Court dismissed the

filing “without prejudice to the applicant to later file a subsequent writ application that

will be evaluated for abuse-of-the-writ purposes, under Section 5 of Article 11.071, as if

it were the applicant’s first subsequent writ application.” Id. at 6.

Applicant filed the instant 11.071 application in the convicting court in November

2016. He raised eight claims, including a claim that he is intellectually disabled and

therefore ineligible for execution, see Atkins v. Virginia, 536 U.S. 304 (2002), and a

claim that his death sentence violates due process because it was based on false and

1 The medical and legal communities now refer to “mental retardation” as “intellectual disability.” See, e.g., Hall v. Florida, 572 U.S. 701, 704–05 (2014). GALLO—3

misleading testimony, see Ex parte Chabot, 300 S.W.3d 768 (Tex. Crim. App. 2009).

After reviewing the application, we concluded that Applicant’s Atkins and Chabot claims

(claims one and three, respectively) satisfied Article 11.071, Section 5. Ex parte Gallo,

No. WR-77,940-03, at 3 (Tex. Crim. App. Feb. 8, 2017) (not designated for publication).

We therefore remanded those claims to the habeas court “for resolution.” Id.

In April 2023, the parties jointly submitted “Agreed Proposed Findings of Fact

and Conclusions of Law” to the habeas court. In essence, the parties agreed that

Applicant had met his burden to prove by a preponderance of the evidence that he is

intellectually disabled (claim one) and that his death sentence was based on false

testimony (claim three). The habeas court signed the parties’ agreed proposed findings on

April 5, 2023. It therefore recommends that we grant relief on claims one and three.

Having reviewed the record, we agree with the parties and the habeas court that

Applicant has met his burden to show by a preponderance of the evidence that he meets

the current, medically accepted diagnostic criteria for intellectual disability. Therefore,

relief is appropriate on claim one. That said, we must clarify some of the habeas court’s

findings.

Finding 14 says, “The AAIDD-12 raises the age of onset from before age eighteen

to before age twenty-two.” Finding 50 says, “Onset during the developmental period

refers to the recognition that intellectual and adaptive deficits are present during

childhood or adolescence, i.e., prior to age twenty-two.” The record shows, and we find,

that Applicant’s intellectual and adaptive deficits emerged before he turned eighteen. GALLO—4

There is therefore no need for us to decide in this case whether the developmental period

extends all the way to age twenty-two.

With those clarifications, and based on our own independent review of the record,

Atkins relief is granted. See Atkins, 536 U.S. at 321. Applicant’s death sentence is

reformed to a sentence of life imprisonment. 2 Based on this resolution, Applicant’s

Chabot claim (claim three) is moot. Any remaining claims are dismissed as an abuse of

the writ under Article 11.071, Section 5.

Delivered: April 17, 2024 Do Not Publish

2 At the time of Applicant’s offense, in December 2001, the only punishment alternatives for capital murder were (1) death and (2) life imprisonment with the possibility of parole. Life imprisonment without the possibility of parole, as a possible sentence for capital murder, did not exist until September 1, 2005, and it did not apply to offenses alleged to have been committed before that date. Acts 2005, 79th Leg., ch. 787, §§ 1, 17–18, eff. Sept. 1, 2005.