By Jennifer Ponder
Assistant Criminal District Attorney, and
Erleigh Wiley
Criminal District Attorney, both in Kaufman County
On October 26, 2013, Charles Brownlow went on a five-person killing spree in Kaufman County, culminating in the robbery and murder of a convenience store clerk. At his capital murder trial, the jury recommended death.
However, seven years and thousands of man-hours after the murders, which included a capital murder trial, appeal, and writ, the United States Supreme Court expanded the definition of intellectual disability. No one in our office imagined the Supreme Court would set aside Texas’ intellectual disability law and overturn the justice our community believed Brownlow deserved. This article explains the practical consequences of Moore and its progeny on intellectual disability.
Capital murder
Brownlow’s murder spree began when he shot and killed his mother, took her ID and credit cards, doused gasoline around the house, and set it on fire. Next, Brownlow went to his aunt’s house where he violently kicked in the door and shot her twice, killing her as well.
After murdering his mother and aunt, Brownlow checked into a hotel room with his dog. Later that evening, he drove to a friend’s house and shot at the two people inside, who faked injuries. Believing them dead, he left. Continuing his rampage, Brownlow next drove to the home of two other friends, who attempted to flee as he forced his way into their house. Brownlow shot the man in the back and head and the woman six times. He left the victims’ 4-year-old child with their bodies.
Later that evening, Brownlow walked into a convenience store, put beer on the counter, and rummaged around his pants. Instead of paying, Brownlow retrieved his gun from his car, and shot the store clerk in the head. After killing the clerk, Brownlow took two 12-packs of beer, tried to open the cash register, and stepped over the clerk’s body to take the clerk’s gun and extra magazine.
At the time Brownlow entered the convenience store, officers were aware of multiple shootings and were on the lookout for a person of his description. An officer on patrol saw Brownlow inside the store, and officers chased him when he left the store and apprehended him two hours later.
Procedural history
The State charged Brownlow with capital murder for killing the gas station clerk during an armed robbery and sought the death penalty. The murder was caught on 16 store cameras.
Before trial began, Brownlow’s attorneys questioned his competency due to his delusional thoughts, auditory hallucinations, and other behaviors.[1] However, at the competency hearing, court-appointed experts testified that Brownlow was competent with a “very good grasp of court procedures” and was likely malingering. Ultimately, the trial court found Brownlow competent and denied additional challenges to his competency before trial.
Because Brownlow’s guilt was plainly evident on film, punishment became the focus of his trial. Brownlow’s defense team argued he was intellectually disabled and therefore ineligible for the death penalty. However, the jury disagreed[2] and sentenced Brownlow to death.
A brief explanation of intellectual disability
The United States Constitution protects intellectually disabled individuals from eligibility for the death penalty.[3] The United States Supreme Court found that executing the intellectually disabled serves no penological purpose, is contrary to the nationally held consensus, and “creates a risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty.”[4]
Although states have “the task of developing appropriate ways to enforce” the restriction against executing the intellectually disabled,[5] this discretion is not “unfettered.”[6] Medical experts alone do not dictate a court’s intellectual disability determination; instead, the decision must be “informed by the medical community’s diagnostic framework.”[7]
To qualify as intellectually disabled, an individual must meet three criteria:
A) deficits in general mental abilities (an IQ of 65–75);
B) adaptive deficits[8] (impairment in everyday adaptive functioning in comparison to an individual’s age, gender, and socio-culturally matched peers); and
C) onset during the developmental period (before age 18).[9]
At Brownlow’s punishment, the trial court applied then-valid Texas law, Briseno v. State, to assist the jury in determining whether he was intellectually disabled. In Briseno, the Court of Criminal Appeals (CCA) followed the three intellectual disability criteria but found the adaptive behavior criteria “exceedingly subjective,” and created seven evidentiary factors to assist that analysis.[10] Approximately four months after Brownlow’s trial, the Supreme Court determined that Texas’s Briseno factors created an unacceptable risk that an intellectual disabled defendant could be executed in violation of the Eighth Amendment.[11]
At punishment
As in the matter of an affirmative defense, Brownlow’s trial team presented his case for intellectual disability, arguing that he met the three necessary criteria from Moore. IQ testing by a defense and a State’s expert showed that Brownlow met the first criteria for intellectual disability (deficits in general mental abilities).[12]
The State used Brownlow’s witnesses to attack his qualifications regarding the second and third criteria for intellectual disability. The State elicited testimony of Brownlow’s adaptive strengths, pursuant to the Briseno factors, and argued that they outweighed any potential deficits. In addition, the State argued that Brownlow’s alleged adaptive deficits were not caused by intellectual disability but rather additional diagnoses, life choices, and personal motivation. The State also argued that Brownlow could not show by a preponderance of the evidence that the onset of any deficits occurred before he was 18.
Defense arguments
Pursuant to Texas law, Brownlow’s schools destroyed his records, including elementary school test results for placement in special education, seven years after his graduation. The defense presented what remained of Brownlow’s school records and elicited testimony from his teachers and other school officials, as well as testimony from a special education consultant. His first-grade teacher testified that Brownlow could have had a learning disability but was not intellectually disabled. Four of Brownlow’s middle and high school teachers testified at punishment, and none reported that Brownlow was in special education because he was intellectually disabled. His biology teacher testified that Brownlow worked well when he chose to, but otherwise his grades suffered accordingly.
Although Brownlow was placed in a special education program at some point, the State argued that placement was not an indication of intellectual disability. Instead, testimony showed that placement in a special education program could have served as:
• resource classes for specific subjects;
• a speech therapy class;
• a self-contained life-skills class and alternative education program for a student at a cognitively lower level; or
• an occupational or vocational program.
Enrollment in the life-skills class would have indicated that the school viewed Brownlow to be intellectually disabled, but that course did not appear on his transcript. Brownlow was allowed to take the state academic tests in all but the tenth grade, which would not typically have been allowed if he were diagnosed with intellectual disability.
Finally, the defense’s special education consultant could not diagnose Brownlow as intellectually disabled based upon Brownlow’s school records. So, using defense witnesses, the State argued Brownlow’s education failed to meet the latter two criteria (that his adaptive deficits were linked to intellectual deficits, or that Brownlow had an onset of deficits before age 18).
In addition, the defense presented expert testimony showing that Brownlow suffered from brain damage to support his claim of intellectual disability. MRI, EEG, and diffusion tensor images of Brownlow’s brain showed that he had various deteriorating brain anomalies. Experts identified genetic blood vessel abnormalities in his brain called cavernous malformations, where tangles of blood vessels occasionally bleed. Patients with this diagnosis continue to develop additional malformations, and the accompanying bleeding kills brain cells in the surrounding areas. These cavernous malformations occurred in every part of Brownlow’s brain, and more than 50 of them have bled. However, none of the defense experts could identify when the brain bleeding began.
Defense experts also found dilated perivascular spaces in Brownlow’s brain, indicating missing brain substance. Brownlow had abnormalities in the areas of the brain involving executive functioning, decision making, and memory. At the time of those scans, Brownlow had lost significant white matter functioning in more than 50 percent of his brain. In addition, Brownlow had low connectivity between his left and right brain, which experts associated with disruptive cognitive abilities.
Testimony about Brownlow’s brain damage backfired because defense experts agreed that Brownlow could have caused his reduced brain-matter by his methamphetamine abuse. In fact, a defense expert diagnosed Brownlow with Substance Abuse Disorder.
Testimony by Brownlow’s family and friends generally reflected that many thought Brownlow was capable of holding a job but refused to. He had worked various jobs in the past. Several described him as slow—not book smart but street smart. He had a reputation for selling drugs on the street, smoking marijuana and methamphetamine, and he was rumored to smoke “wet” (joints dipped in PCP). In addition, Brownlow was known to be a ladies’ man, and many of his paramours testified at punishment.
The State’s case against intellectual disability
A State’s expert testified that Brownlow’s subaverage intelligence and neurocognitive problems did not begin before he was 18 and instead began as a result of his abuse of methamphetamines. Brownlow’s test scores[13] showed that he was more intelligent in the past than at the time of trial. The expert testified that some behaviors, which the defense attributed to intellectual disability, were due to Brownlow’s diagnosis of antisocial personality disorder. In addition, the expert explained that some of the information defense experts used as evidence of adaptive deficits were instead the result of Brownlow’s personality, motivation, and life choices.
Another State’s expert, who had extensively interviewed Brownlow, evaluated numerous documents and phone calls, and spoken with witnesses, described Brownlow as “an eloquent writer” with good grammar and word comprehension. Her observation of Brownlow and his actions[14] led her to conclude that Brownlow did not have adaptive deficits. She further believed that Brownlow did not give a good faith effort on his IQ tests and lacked incentive to do so.
Using the Briseno factors, the State successfully argued that Brownlow failed to show he met the second and third intellectual disability criteria (adaptive deficits and onset before age 18). The jury recommended that Brownlow should receive the death penalty.
Expanded inclusion of intellectual disability
After Brownlow’s trial, the Supreme Court ruled in Moore I that Texas’s Briseno factors created an unacceptable risk that an intellectually disabled individual would be executed in violation of the Constitution.[15] Briseno’s seven evidentiary factors caused Texas courts to overemphasize a defendant’s perspective adaptive strengths by finding that they could outweigh his adaptive deficits.[16]
The Supreme Court relied on the most updated versions of leading diagnostic manuals and their authors’ amicus briefs to define intellectual disability.[17] The Supreme Court re-iterated the three criteria:
A) intellectual deficits;
B) adaptive deficits; and
C) the onset of these deficits prior to age 18.[18]
Adaptive deficits appear in three domains: “conceptual, social, and practical.”[19] All that is necessary to demonstrate an adaptive deficit is showing deficiency in one of the three domains such that “ongoing support is needed in order for the person to perform adequately in one or more life settings at school, at work, at home, or in the community.”[20]
Briseno, like the DSM-5, required that adaptive deficits be directly “related” to a person’s intellectual-functioning deficits of Criterion A to qualify as intellectually disabled.[21] Although the Supreme Court acknowledged that the DSM-5 required adaptive deficits be related to intellectual functioning, it pointed out that the American Association on Intellectual and Developmental Disabilities did not retain this requirement.[22] Beyond this acknowledgement, the Supreme Court did not require a showing that an individual’s adaptive deficits were related to his intellectual deficits.[23]
Most significantly, the Supreme Court held that an individual’s surrounding circumstances or traumatic experiences could not be used to create alternatives to a diagnosis of intellectual disability; rather, they were “‘risk factors’ for intellectual disability.”[24] In addition, a coexisting condition, such as a personality disorder or mental health issue, “is ‘not evidence that a person does not also have intellectual disability.’” [25]
On remand from Moore I, the CCA reconsidered Ex parte Moore and once again determined that Moore was not intellectually disabled through analysis of adaptive deficits.[26] The day before Brownlow’s oral argument to the CCA, the Supreme Court released its opinion in Moore II, finding that the CCA repeated the errors of Moore I.[27] Even though the CCA explicitly abandoned Briseno, the CCA opinion “repeat[ed] the analysis [the Supreme Court] previously found wanting, and these same parts [were] critical to its ultimate conclusion.”[28] The Briseno factors “had no grounding in prevailing medical practice,” and “they invited ‘lay perceptions of intellectual disability’ and ‘lay stereotypes’ to guide assessment of intellectual disability.”[29]
The Supreme Court chastised the CCA for attributing Moore’s deficient social behavior to emotional problems instead of intellectual disability.[30] In addition, Moore II held psychologists cannot consider adaptive improvements made while in prison.[31]
Moore’s aftermath on Brownlow and beyond
On February 12, 2020, the CCA affirmed Charles Brownlow’s guilt but reversed his death sentence and remanded his case to the trial court for punishment.[32] The CCA refused to decide whether Brownlow was intellectually disabled.[33] Given the significant changes to intellectual disability law, our office had to determine whether the State could legally execute Brownlow for his crimes or if the change to the law was so great that Brownlow was limited to life without parole.
Legal analysis and consultation show that the Moore doctrine vastly expanded the pool of candidates who can now legally qualify as intellectually disabled. Thus, it is almost guaranteed that Brownlow would meet his burden to prove by preponderance of the evidence that he was intellectually disabled.
First, by eliminating any connection between an individual’s adaptive deficits and his intellectual-functioning deficits,[34] the Supreme Court broadened the adaptive deficits criterion. In theory, dyslexia or a gambling addition could fulfill the adaptive deficits criterion.
Second, the Supreme Court essentially ordered courts to ignore any alternate explanations for a defendant’s behavior or adaptive deficits when making an intellectual disability finding.[35] So long as a defendant’s behavior could qualify as an adaptive deficit, then it should be considered a risk factor for intellectual disability.
Finally, the Supreme Court circumscribed a court’s ability to examine adaptive strengths. The Supreme Court found because the medical community does not consider it, the courts should not either.
In Brownlow’s case, his current IQ satisfies Criterion A of intellectual disability. Further, it is undisputed that Brownlow was involved in some form of special education prior to the age of 18. Brownlow’s enrollment in special education alone is sufficient to qualify as an adaptive deficit, as it demonstrates that he needed support to perform adequately within the conceptual or academic domain. Any alternative explanation, such as a learning disorder, lack of motivation, lack of support at home, etc., will be disregarded. And, because Brownlow was in special education prior to age 18, he meets Criterion C. Therefore, it would be unlikely that a jury, let alone a reviewing court, would find that Brownlow failed to show by a preponderance of the evidence that he was intellectually disabled.
Members of our trial team met with the families of Brownlow’s victims to explain the change in the law. They are disappointed in the Supreme Court’s decision to revise Texas’s law on intellectual disability, but they take solace in the fact that Charles Brownlow will live out the rest of his life behind bars.
Where we go from here
Given the expansion of who qualifies as intellectually disabled, prosecutors can expect future challenges to intellectual disability. The Supreme Court is likely to find execution of an intellectually disabled individual unconstitutional, regardless of when that disability began. Further, the en banc Fourth Court of Appeals recently held that the automatic imposition of life without parole is unconstitutional for individuals with intellectual disability.[36]
Obviously, the execution of the intellectually disabled violates our sensibilities; however, the Supreme Court’s expansion of who has an intellectual disability will drastically change how prosecutors proceed on capital cases and beyond. This ruling is a change we all must keep in mind in future prosecution.
Endnotes
[1] A defense expert testified that Brownlow believed that his parents murdered him while he was a toddler and that he was resurrected. Further, Brownlow told the expert that he was being controlled by hacking and implants, was the victim of numerous scientific experiments, and that he was the sole interpreter of the Bible via his own system of numerology.
[2] Texas courts treat intellectual disability as an affirmative defense, requiring the defendant to meet a preponderance of the evidence standard. Ex parte Briseno, 135 S.W.3d 1, 12 (Tex. Crim. App. 2004), overturned by Moore v. Texas (Moore I), 137 S.Ct. 1039, 1044 (2017) (citing Tex. Penal Code §8.01(a); Tex. Code Crim. Proc. Art. 46.02(b); State v. Lott, 779 N.E.2d 1011, 1015 (Ohio 2002), overruled on other grounds by State v. Ford, 140 N.E.3d 616 (Ohio 2019)) (comparing intellectual disability to insanity, competence, and mental retardation).
[3] Moore I, 137 S.Ct. at 1048 (citing Atkins v. Virginia, 536 U.S. 304, 321 (2002); Hall v. Florida, 572 U.S. 701, 708–09 (2014); Roper v. Simmons, 543 U.S. 551, 563–64 (2005)).
[4] Atkins, 536 U.S. at 313–17, 318–20, 320.
[5] Moore I, 137 S.Ct. at 1048 (citing Hall, 572 U.S. at 722–23).
[6] Hall, 572 U.S. at 719.
[7] Moore I, 137 S.Ct. at 1048 (quoting Hall, 572 U.S. at 721).
[8] Adaptive deficits appear in three domains: “conceptual, social, and practical.” American Psychiatric Association, Diagnostic and Statistical Manual of Disorders (DSM-5), 5th ed. (2013) at 37; Moore I, 137 S.Ct. at 1050 (citing Brumfield v. Cain, 576 U.S. 305, 320–21 (2015)). The conceptual domain is also referred to as “academic” and involves things such as “competence in memory, language, reading, writing, math reasoning, acquisition of practical knowledge, problem solving, and judgment in novel situations. Id. The social domain involves things such as “awareness of others’ thoughts, feelings, and experiences; empathy, interpersonal communication skills; friendship abilities, and social judgment.” Id. The practical domain involves “learning and self-management across life settings, including personal care, job responsibilities, money management, recreation, self-management of behavior, and school and work task organization.” Id.
[9] Moore v. Texas (“Moore II”), 139 S.Ct. 666, 668 (2019) (citing Moore I, 137 S.Ct. at 1045 (citing Hall, 572 U.S. at 710); DSM-5 at 37.
[10] Briseno, 135 S.W.3d at 8. The CCA listed the seven Briseno factors as:
1) Did those who knew the person best during the developmental stage—his family, friends, teachers, employers, authorities—that he was intellectually disabled at that time, and, if so, act in accordance with that determination?
2) Has the person formulated plans and carried them through, or is his conduct impulsive?
3) Does his conduct show leadership, or does it show that he is led around by others?
4) Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable?
5) Does he respond coherently, rationally, and on point to oral or written questions, or do his responses wander from subject to subject?
6) Can the person hide facts or lie effectively in his own or others’ interests?
7) Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose?
Briseno, 135 S.W.3d at 8–9.
[11] Moore I, 137 S.Ct. at 1044, 1051; Briseno, 135 S.W.3d at 8.
[12] Brownlow scored a 67 and a 70 on recent IQ tests.
[13] For example, in 2009, at age 31, Brownlow received a 92 on a Beta-III test he took while incarcerated in TDCJ. This more basic IQ test was intended to be a “quick reliable measure of nonverbal intellectual ability” and not an exact correlation to a more comprehensive intelligence test.
[14] Brownlow rented a hotel room, cared for his dog, developed a scheme to steal a TV from Walmart, passed a written test to get his driver’s license, described schizophrenia and bipolar to the expert, and thought the expert might help him go to a mental hospital instead of trial.
[15] Moore I, 137 S.Ct. at 1044, 1051; Briseno, 135 S.W.3d at 8.
[16] Moore I, 137 S.Ct. at 1050, 1051.
[17] Moore I, 137 S.Ct. at 1048–49.
[18] Moore II, 139 S.Ct. at 668 (citing Moore I, 137 S.Ct. at 1045 (citing Hall, 572 U.S. at 710); DSM-5.
[19] DSM-5 at 37.
[20] DSM-5 at 38.
[21] Briseno, 135 S.W.3d at 7; DSM-5 at 38.
[22] Moore I, 137 S.Ct. at 1055 (citing Briseno, 135 S.W.3d at 8).
[23] Moore I, 137 S.Ct.; Moore II, 139 S.Ct.
[24] Moore I, 137 S.Ct. at 1051 (quoting AAIDD-11, at 59–60) (stating “Clinicians rely on such factors as cause to explore the prospect of intellectual disability further, not to counter the case for a disability determination”).
[25] Moore I, 137 S.Ct. at 1051 (quoting Brief for American Psychological Association, APA, et al. as Amici Curae 19).
[26] Moore II, 139 S.Ct. at 670 (citing Ex parte Moore II, 548 S.W.3d 552, 555 (Tex. Crim. App. 2018)).
[27] Moore II, 139 S.Ct. at 668–69 (internal quotations omitted) (stating that the CCA: overemphasized the defendant’s adaptive strengths; “stressed Moore’s improved behavior in prison” although “[c]linicians … caution against reliance on adaptive strengths developed ‘in a controlled setting,’ as prison surely is”; allowed alternative explanations for Moore’s behavior instead of intellectual disability, contrary to the medical community’s determination that those are “‘risk factors’ for intellectual disability”).
[28] Moore II, 139 S.Ct. at 670.
[29] Moore II, 139 S.Ct. at 669 (quoting Moore I, 137 S.Ct. at 1051).
[30] Moore II, 139 S.Ct. at 671.
[31] Moore II, 139 S.Ct. at 671 (stating that medical experts do not credit improvements in highly structured settings).
[32] Brownlow v. State, No. AP–77,068, 2020 WL 718026 (Tex. Crim. App. Feb. 12, 2020).
[33] Brownlow, 2020 WL 718026, at *21.
[34] Supra note 25.
[35] Supra notes 26 & 27.
[36] Avalos v. State, Nos. 04–19–00192–93–CR, —- S.W.3d —-, 2020 WL 7775186, at *3 (Tex. App.—San Antonio Dec. 30, 2020, pet. filed) (on reh’g en banc).