IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-55,161-02

EX PARTE ERIC DEWAYNE CATHEY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS IN CAUSE NO. 713189-B FROM THE 176TH DISTRICT COURT OF HARRIS COUNTY

P RICE, J., filed a concurring opinion.

CONCURRING OPINION

I join Parts I and IIA of the Court’s opinion today and otherwise concur in the result.

I do not join Part IIB. For present purposes, suffice it to say that I continue to disagree with

the Court’s decidedly non-diagnostic approach to evaluating the adaptive-deficits prong of

the standard for determining intellectual disability vel non.1 Particularly after the recent

1

See Peggy M. Tobolowsky, Different Path Taken: Texas Capital Offenders’ Post-Atkins Claims of Mental Retardation, 39 HASTINGS CONST . L.Q. 1, 123-25, 163-66 (Fall 2011) (discussing and quoting extensively from my unpublished dissenting opinion in Lizcano v. State, No. AP-75,879, 2010 WL 1817772 (Tex. Crim. App. delivered May 5, 2010) (not designated for publication)). CATHEY — 2

opinion of the United States Supreme Court in Hall v. Florida,2 I should think that the

writing is on the wall for the future viability of Ex parte Briseno.3

FILED: November 5, 2014 PUBLISH

2

134 S.Ct. 1986 (2014). Hall found Florida’s approach to determining the first prong of the standard for intellectual disability, the significantly-subaverage-general-intellectual-functioning prong, to be unconstitutionally narrow. In my view, Texas’s approach to determining the second prong, the adaptive-deficits prong, is unconstitutionally over-inclusive—insufficiently tied to the clinical diagnostic criteria and all too open to non-scientific, impressionistic considerations to withstand Eighth Amendment scrutiny. Tobolowsky, 39 HAST . CONST . L.Q. at 163-66 (citing and quoting from Lizcano v. State, 2010 WL 1817772, at *32-40 (Price, J., dissenting)). 3

135 S.W.3d 1 (Tex. Crim. App. 2004). See Tobolowsky, 39 HAST . CONST . L.Q. at 173 (“[T]he Briseno factors remain a leading candidate for [Supreme] Court scrutiny.”).