On original submission, Appellant raised multiple grounds claiming, in essence, that he should be exempted from the death penalty due to his intellectual disability. We addressed his claims even as the United States

Supreme Court evaluated whether the standard that we use in Texas for determining intellectual disability–set out in Ex parte Briseno – violates ^[2] the Eighth Amendment. Before this appeal was final, the United States Supreme Court handed down Moore v. Texas . Moore clearly invalidates ^[3]

portions of our Briseno standard–namely the reliance upon non-clinical “factors” to evaluate adaptive functioning–and calls other aspects of our standard into question. If all had done was simply prohibit the ^[4]

use of “the Briseno factors” when determining intellectual disability I would agree to a denial of rehearing. However, Moore appears to go further than that, as noted in Chief Justice Roberts’ dissent. We seem ^[5] to have recognized as much when we agreed to briefing on the issue of intellectual disability, rather than simply granting Moore the habeas relief he seeks. Though it is unusual to grant rehearing on our own motion, these are unique circumstances. It is more prudent to address these issues at this juncture given that Appellant specifically asked us to re- work our standard for determining intellectual disability, Moore now requires us to do just that, was decided before Appellant’s appeal became final, and Appellant did not have the benefit of on original submission.

With these thoughts I concur.

Filed: October 18, 2017

Do Not Publish

[1] Appellant specifically asked us to re-work our standard for determ ining intellectual disability in light of , and we declined to do so.

[2] 135 S.W .3d 1 (Tex. Crim . App. 2004).

[3] 137 S.Ct. 1039 (2017).

[4] Id. at 1053 (Roberts, C.J., dissenting)(observing that the United States Suprem e Court unanim ously agreed that the Briseno factors violated the Eighth Am endm ent); see also id. at 1049 (m aj. opinion) (noting that our evaluation of IQ scores is irreconcilable with because it allows for factors unique to the individual to narrow the test- specific standard-error range); see also id. at 1050 (m aj. opinion) (noting that the m edical com m unity focuses adaptive-functioning inquiry on adaptive deficits rather than adaptive strengths and that we overem phasized the defendant’s adaptive strengths).

[5] Id. at 1059-61 (Roberts, C.J., dissenting) (criticizing the m ajority for calling into question a reviewing court’s ability to draw reasonable inferences about IQ scores); see also In re Cathey , 857 F.3d 221, 235 (5th Cir. 2017) (recognizing that the United States Suprem e Court had invalidated Briseno , but “did not announce what should replace the Briseno factors”).

[6] Ex parte Moore , No. W R-13,374-05 (Tex. Crim . App. June 14, 2017)(not designated for publication).