IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-63,926-03
EX PARTE GILMAR ALEXANDER GUEVARA, Applicant
ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE NO. 847121-C IN THE 180TH JUDICIAL DISTRICT COURT HARRIS COUNTY
Per curiam.
OPINION
This is a subsequent application for a writ of habeas corpus filed pursuant to the
provisions of Texas Code of Criminal Procedure Article 11.071.1 In May 2001, Applicant
was convicted of capital murder and sentenced to death. See T EX. P ENAL C ODE § 19.03(a);
Art. 37.071 § 2. We affirmed his conviction and sentence on direct appeal. Guevara v. State,
97 S.W.3d 579, 580 (Tex. Crim. App. 2003).
In December 2002, Applicant filed his initial application for a writ of habeas corpus
1 All references to articles herein refer to the Texas Code of Criminal Procedure. Guevara - 2
challenging the merits of his conviction and resulting sentence. The judge entered findings
of fact and conclusions of law recommending that relief be denied. In January 2006, this
Court received Applicant’s first subsequent writ application. In this application, Applicant
raised the claim that his execution would violate Atkins v. Virginia, 536 U.S. 304 (2002),
because he “was and is a person with mental retardation, as this Court has now interpreted
that status . . . by its opinion in Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004).”
Applicant supported his Atkins claim with the report of a clinical neuropsychologist, Dr.
Antolin Llorente, who administered a full-scale, Spanish-language IQ test on which Applicant
obtained a “Broad Cognitive Ability score of 60+/-5 (.4%ile).” Llorente concluded in his
evaluation that Applicant met the criteria for intellectual disability.
In 2007, this Court issued an order denying relief on Applicant’s initial writ application
and dismissing Applicant’s first subsequent application as an abuse of the writ. Ex parte
Guevara, Nos. WR-63,926-01 & WR-63,926-02 (Tex. Crim. App. 2007) (not designated for
publication). At the time of our order, Briseno provided the framework for evaluating an
intellectual disability claim. See, e.g., Ex parte Sosa, 364 S.W.3d 889, 890 (Tex. Crim. App.
2012) (remanding to the convicting court a 2006 writ raising an intellectual disability claim
for the judge to consider the factors established in Ex parte Briseno).
In Moore v. Texas, 137 S. Ct. 1039 (2017) (Moore I), the United States Supreme
Court rejected the use of the factors this Court set out in Briseno to analyze adaptive deficits
because they “creat[e] an unacceptable risk that persons with intellectual disability will be
executed.” Id. at 1051. The Supreme Court held that this Court improperly “fastened its Guevara - 3
intellectual-disability determination” to the definition of intellectual disability we adopted in
Briseno for Atkins claims in death-penalty cases. Id. at 1053. Accordingly, this Court issued
a new Moore decision on June 6, 2018, jettisoning the Briseno framework and “conclud[ing]
that the DSM-5 should control our approach to resolving the issue of intellectual disability.”
Ex parte Moore, 548 S.W.3d 552, 559-60 (Tex. Crim. App. 2018). We held that, under the
DSM-5 framework, Moore still “failed to show adaptive deficits sufficient to support a
diagnosis of intellectual disability.” Id. at 573.
Applicant filed the instant subsequent (-03) writ application with the district clerk in
2018. He alleged in this subsequent application that the Supreme Court’s Moore I decision
constituted a new legal basis for relief that was not available when he originally raised his
intellectual disability claim. See Art. 11.071 §5(a)(1). He contended that he was entitled to
a review of his intellectual disability claim on the merits and a grant of relief.
On June 6, 2018, in light of Moore I, we found that Applicant had satisfied the
requirements of Article 11.071 § 5(a) with regard to his intellectual disability allegation in his
-03 writ application. We remanded the application to the habeas court for a hearing to
develop evidence, enter findings of fact and conclusions of law, and make a new
recommendation to this Court on the issue. We allowed that the habeas court could receive
new evidence germane to the question of intellectual disability from mental health experts and
others. We directed that the court should consider all of the evidence in light of Moore I, 137
S. Ct. 1039, and should not consider the Briseno factors.
In 2019, the Supreme Court held that our 2018 Ex parte Moore decision was Guevara - 4
inconsistent with Moore I. Moore v. Texas, 139 S. Ct. 666, 670 (2019) (Moore II). The
Supreme Court faulted this Court for relying less on Moore’s adaptive deficits than on his
adaptive strengths, especially “adaptive improvements made in prison.” Id. at 670-71. The
Court suggested that this Court had continued to rely on a Briseno-type analysis and “lay
stereotypes of the intellectually disabled” in reaching its conclusion. Id. at 671-72.
Meanwhile, Applicant received additional neuropsychological assessments.
Applicant’s new expert, Dr. Leo Shea, a clinical psychologist and neuropsychologist,
interviewed Applicant, conducted several standardized tests, and reviewed the sworn
statements of Applicant’s family members. Shea reported that Applicant obtained a full scale
IQ score on the Wechsler Adult Intelligence Scale Fourth Edition Spanish (WAIS-IV) in the
borderline range (72). Shea further reported that “[v]irtually all indexes and Full-Scale
scores,” with the exception of one index, fell “within the range for Intellectual Disability.”
Shea concluded, “After conducting extensive neuropsychological testing and clinical
interviews in Spanish and reviewing reports of his functioning during the development period,
in my clinical judgment, [Applicant] is a person with Intellectual Disability.”
The State’s expert, Dr. Gilbert Martinez, completed an independent review of
Applicant’s psychological assessment records, including Shea’s and Llorente’s work, and
concluded that,
In the context of the documented presence of multiple adaptive functioning deficits throughout the formative period into adulthood and no other contributory medical history (such as a recently acquired traumatic brain injury), [Applicant’s] test scores and functional history will likely meet DSM-5 and AAIDD criteria for Mild Intellectual Disability. Guevara - 5
On April 13, 2020, the trial court held an evidentiary hearing. The parties offered
several exhibits including the above experts’ reports. The State did not contest the diagnoses
of intellectual disability or “the legal consequence of that diagnosis.” Both parties filed
proposed findings of fact and conclusions of law stating that Applicant had met his burden
to show that he satisfied the legal and clinical criteria for an intellectual disability diagnosis.
The habeas judge signed findings of fact and conclusions of law on April 16, 2020,
recommending that this Court grant relief on Applicant’s intellectual disability claim. The
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IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-63,926-03
EX PARTE GILMAR ALEXANDER GUEVARA, Applicant
ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE NO. 847121-C IN THE 180TH JUDICIAL DISTRICT COURT HARRIS COUNTY
Per curiam.
OPINION
This is a subsequent application for a writ of habeas corpus filed pursuant to the
provisions of Texas Code of Criminal Procedure Article 11.071.1 In May 2001, Applicant
was convicted of capital murder and sentenced to death. See T EX. P ENAL C ODE § 19.03(a);
Art. 37.071 § 2. We affirmed his conviction and sentence on direct appeal. Guevara v. State,
97 S.W.3d 579, 580 (Tex. Crim. App. 2003).
In December 2002, Applicant filed his initial application for a writ of habeas corpus
1 All references to articles herein refer to the Texas Code of Criminal Procedure. Guevara - 2
challenging the merits of his conviction and resulting sentence. The judge entered findings
of fact and conclusions of law recommending that relief be denied. In January 2006, this
Court received Applicant’s first subsequent writ application. In this application, Applicant
raised the claim that his execution would violate Atkins v. Virginia, 536 U.S. 304 (2002),
because he “was and is a person with mental retardation, as this Court has now interpreted
that status . . . by its opinion in Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004).”
Applicant supported his Atkins claim with the report of a clinical neuropsychologist, Dr.
Antolin Llorente, who administered a full-scale, Spanish-language IQ test on which Applicant
obtained a “Broad Cognitive Ability score of 60+/-5 (.4%ile).” Llorente concluded in his
evaluation that Applicant met the criteria for intellectual disability.
In 2007, this Court issued an order denying relief on Applicant’s initial writ application
and dismissing Applicant’s first subsequent application as an abuse of the writ. Ex parte
Guevara, Nos. WR-63,926-01 & WR-63,926-02 (Tex. Crim. App. 2007) (not designated for
publication). At the time of our order, Briseno provided the framework for evaluating an
intellectual disability claim. See, e.g., Ex parte Sosa, 364 S.W.3d 889, 890 (Tex. Crim. App.
2012) (remanding to the convicting court a 2006 writ raising an intellectual disability claim
for the judge to consider the factors established in Ex parte Briseno).
In Moore v. Texas, 137 S. Ct. 1039 (2017) (Moore I), the United States Supreme
Court rejected the use of the factors this Court set out in Briseno to analyze adaptive deficits
because they “creat[e] an unacceptable risk that persons with intellectual disability will be
executed.” Id. at 1051. The Supreme Court held that this Court improperly “fastened its Guevara - 3
intellectual-disability determination” to the definition of intellectual disability we adopted in
Briseno for Atkins claims in death-penalty cases. Id. at 1053. Accordingly, this Court issued
a new Moore decision on June 6, 2018, jettisoning the Briseno framework and “conclud[ing]
that the DSM-5 should control our approach to resolving the issue of intellectual disability.”
Ex parte Moore, 548 S.W.3d 552, 559-60 (Tex. Crim. App. 2018). We held that, under the
DSM-5 framework, Moore still “failed to show adaptive deficits sufficient to support a
diagnosis of intellectual disability.” Id. at 573.
Applicant filed the instant subsequent (-03) writ application with the district clerk in
2018. He alleged in this subsequent application that the Supreme Court’s Moore I decision
constituted a new legal basis for relief that was not available when he originally raised his
intellectual disability claim. See Art. 11.071 §5(a)(1). He contended that he was entitled to
a review of his intellectual disability claim on the merits and a grant of relief.
On June 6, 2018, in light of Moore I, we found that Applicant had satisfied the
requirements of Article 11.071 § 5(a) with regard to his intellectual disability allegation in his
-03 writ application. We remanded the application to the habeas court for a hearing to
develop evidence, enter findings of fact and conclusions of law, and make a new
recommendation to this Court on the issue. We allowed that the habeas court could receive
new evidence germane to the question of intellectual disability from mental health experts and
others. We directed that the court should consider all of the evidence in light of Moore I, 137
S. Ct. 1039, and should not consider the Briseno factors.
In 2019, the Supreme Court held that our 2018 Ex parte Moore decision was Guevara - 4
inconsistent with Moore I. Moore v. Texas, 139 S. Ct. 666, 670 (2019) (Moore II). The
Supreme Court faulted this Court for relying less on Moore’s adaptive deficits than on his
adaptive strengths, especially “adaptive improvements made in prison.” Id. at 670-71. The
Court suggested that this Court had continued to rely on a Briseno-type analysis and “lay
stereotypes of the intellectually disabled” in reaching its conclusion. Id. at 671-72.
Meanwhile, Applicant received additional neuropsychological assessments.
Applicant’s new expert, Dr. Leo Shea, a clinical psychologist and neuropsychologist,
interviewed Applicant, conducted several standardized tests, and reviewed the sworn
statements of Applicant’s family members. Shea reported that Applicant obtained a full scale
IQ score on the Wechsler Adult Intelligence Scale Fourth Edition Spanish (WAIS-IV) in the
borderline range (72). Shea further reported that “[v]irtually all indexes and Full-Scale
scores,” with the exception of one index, fell “within the range for Intellectual Disability.”
Shea concluded, “After conducting extensive neuropsychological testing and clinical
interviews in Spanish and reviewing reports of his functioning during the development period,
in my clinical judgment, [Applicant] is a person with Intellectual Disability.”
The State’s expert, Dr. Gilbert Martinez, completed an independent review of
Applicant’s psychological assessment records, including Shea’s and Llorente’s work, and
concluded that,
In the context of the documented presence of multiple adaptive functioning deficits throughout the formative period into adulthood and no other contributory medical history (such as a recently acquired traumatic brain injury), [Applicant’s] test scores and functional history will likely meet DSM-5 and AAIDD criteria for Mild Intellectual Disability. Guevara - 5
On April 13, 2020, the trial court held an evidentiary hearing. The parties offered
several exhibits including the above experts’ reports. The State did not contest the diagnoses
of intellectual disability or “the legal consequence of that diagnosis.” Both parties filed
proposed findings of fact and conclusions of law stating that Applicant had met his burden
to show that he satisfied the legal and clinical criteria for an intellectual disability diagnosis.
The habeas judge signed findings of fact and conclusions of law on April 16, 2020,
recommending that this Court grant relief on Applicant’s intellectual disability claim. The
court found, “No expert has opined that Mr. Guevara does not have intellectual disability.”
Regarding the DSM-5’s criteria for intellectual disability, the court found and concluded that
“more than a preponderance of evidence demonstrates” that Applicant:
(A) “has significant deficits in intellectual functioning”;
(B) “has significant adaptive deficits in the conceptual, social, and practical domains” and he “has adaptive deficits that have limited his functioning in one or more activities of daily life, such as communication, social participation and independent living across multiple environments, such as home, school, work, and community”; and
(C) has “significant adaptive deficits [that] were evident from early childhood and throughout the developmental period.”
The habeas court further found that Applicant’s “significant adaptive deficits are related to
his intellectual disability and not attributable to a non-neurological disability or some
intervening event like a traumatic brain injury in adulthood.” The court found and concluded
that Applicant has “met his burden to prove by a preponderance of the evidence that he
satisfies the legal and clinical criteria for a diagnosis of intellectual disability and is therefore Guevara - 6
ineligible for the death penalty.”
Having reviewed the record in this case, we determine that Applicant has met his
burden to show that he satisfies the diagnostic criteria for intellectual disability. Relief is
granted on Applicant’s intellectual disability claim. However, we do not adopt the habeas
court’s findings of fact and conclusions of law. We reform Applicant’s sentence of death to
a sentence of life imprisonment.2 To the extent that Applicant raised other allegations in this
subsequent writ application, we previously determined that they did not satisfy the
requirements of Article 11.071 § 5(a) and we now dismiss them as an abuse of the writ. See
Art. 11.071 § 5(c).
Delivered: September 23, 2020 Do not publish
2 At the time of Applicant’s offense, the only available alternative punishment for capital murder was life in prison with the possibility of parole after the actual time served equals forty years. In 2005, the Legislature amended Article 37.071 to provide that a life-sentenced capital defendant would no longer be eligible for parole. See Estrada v. State, 313 S.W.3d 274, 281 n.3 (Tex. Crim. App. 2010) (citing Art. 37.071 § 2(g); Acts 2005, 79th Leg., R.S., ch. 787, §§ 7, 8, 9, page 2706 (SB 60), eff. September 1, 2005).