text:
    HAGGAR CLOTHING COMPANY a/k/a Haggar Apparel Company, Petitioner, v. Altagracia HERNANDEZ, Respondent.
    No. 03-0897.
    Supreme Court of Texas.
    May 13, 2005.
    Jorge C. Rangel and Jon D. Brooks, The Rangel Law Firm, P.C., Corpus Christi, Neil E. Norquest and Chris A. Brisack, Norquest & Brisack, L.L.P., McAllen, TX, for Petitioners.
    Aaron Pena Jr., Aaron Pana Jr. & Associates, Edinburg, John Gregory Escamilla, Watts Law Firm, L.L.P., Francisco J. Rodriguez and Ezequiel Tovar, Rodriguez Tovar & De Los Santos, LLP, McAlen, TX, for Respondent.
   PER CURIAM.

Altagracia Hernandez sued her former employer, Haggar Clothing Company, alleging that she was fired in retaliation for filing a workers’ compensation claim after she was injured on the job. The jury found in favor of Hernandez on her retaliation claim, found that Haggar acted with actual malice, and awarded Hernandez compensatory and exemplary damages. The trial court rendered judgment on the verdict, and the court of appeals affirmed. 164 S.W.3d 407, 2003 WL 21982181. We hold that the evidence is legally insufficient to support the jury’s retaliation finding, and we therefore reverse the court of appeals’ judgment and render judgment for Haggar.

Hernandez worked as a seamstress at Haggar’s Weslaco plant. On February 19, 1991, she was injured at work when another employee carrying a table accidentally hit her on the chin with the table, knocking her down and causing neck, knee, and back pain as well as brief loss of consciousness. According to Haggar’s records, Hernandez officially went on workers’ compensation leave on February 25, 1991. She was receiving medical treatment while on leave that was covered by Haggar’s workers’ compensation insurance, but she hired an attorney in August 1991 when the Texas Workers’ Compensation Commission began investigating whether she had reached “maximum medical improvement” such that her income benefits should cease. See Act of Dec. 12, 1989, 71st Leg., 2d C.S., ch. 1, § 4.23(b), 1989 Tex. Gen. Laws 1, 38, repealed by Act of May 12, 1993, 73d Leg., R.S., ch. 269, § 5(2), 1993 Tex. Gen. Laws 987, 1273 (current version at Tex. Lab.Code § 408.102(a) (“Temporary income benefits continue until the employee reaches maximum medical improvement.”)).

On February 26, 1992, Haggar’s Wesla-co plant manager, Angel Ritchey, sent Hernandez a letter by registered mail informing her that her employment with Haggar was being terminated because she had not returned to work after a year. Haggar had a leave-of-absence policy, distributed to its employees in both English and Spanish, which provided that the maximum amount of time an employee could remain on leave, regardless of the reason, was one year. Ritchey’s letter to Hernandez, written in English, stated that Hernandez had five days from the letter’s postmarked date to protest the decision. Hernandez does not speak English and testified that she took the letter to her attorney, though she could not remember if she did so right away. She did not protest the decision. Hernandez also testified that Haggar never informed her of the policy, but Haggar produced a document, written in Spanish and signed by Hernandez, stating that she had received the employee handbook that contained the policy.

Hernandez sued Haggar in 1994, alleging Haggar had unlawfully terminated her for filing a workers’ compensation claim in good faith. The jury found for Hernandez on her retaliatory discharge claim and found that the harm to Hernandez resulted from actual malice, awarding Hernandez $210,000 in compensatory damages and $1.4 million in exemplary damages. The trial court rendered judgment on the verdict, and Haggar appealed.

The court of appeals affirmed, holding that the evidence was legally and factually sufficient to support the jury’s findings of retaliation, actual malice, and actual and punitive damages. 164 S.W.3d at 413. Haggar also raised several other points of error that the court of appeals addressed and overruled, but in this Court Haggar challenges only the legal sufficiency of the evidence to support the jury’s findings of retaliation and malice.

In a legal sufficiency review, “all of the record evidence must be considered in a light most favorable to the party in whose favor the verdict has been rendered, and every reasonable inference deducible from the evidence is to be indulged in that party’s favor.” Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998) (citing Harbin v. Seale, 461 S.W.2d 591, 592 (Tex.1970)). If more than a scintilla of evidence supports the challenged finding, the no-evidence challenge fails. Id. “More than a scintilla of evidence exists where the evidence supporting the finding, as a whole, ‘rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.’ ” Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995) (quoting Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994)). We begin by reviewing the evidence supporting the retaliation finding.

The Labor Code provides, in pertinent part, that a person may not discharge or discriminate against an employee because the employee has: (1) filed a workers’ compensation claim in good faith; (2) hired a lawyer to represent the employee in a claim; or (3) instituted or caused to be instituted in good faith a workers’ compensation proceeding. Tex. Lab.Code § 451.001(l)-(3). To prove a “retaliatory discharge” claim, the employee must show that the employer’s action would not have occurred when it did had the employee’s protected conduct—filing a workers’ compensation claim—not occurred. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996).

In affirming the trial court’s judgment, the court of appeals focused heavily on evidence Hernandez presented that Haggar’s safety-incentive policies, which included bonus opportunities for units that had accumulated a certain number of hours without a “lost-time accident” that required an employee to miss work, pressured employees not to report workplace injuries for fear of upsetting co-workers. Hernandez also presented evidence that plant managers were under economic pressure to minimize workers’ compensation claims, that she had felt pressured to remain at work the day of her accident, and that Ritchey had threatened not to pay for her treatment by a chiropractor the day after the accident. This may constitute circumstantial evidence supporting a causal link between Hernandez’s termination and her filing a workers’ compensation claim. We held in Cazarez, however, that an employer who terminates an employee pursuant to the uniform enforcement of a reasonable absence-control provision will not be liable for retaliatory discharge. Id. at 451 (citing Tex. Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313 (Tex.1994)). The above evidence is thus immaterial if Hernandez’s termination was required by the uniform enforcement of Haggar’s one-year leave-of-absence policy.

Hernandez does not argue that Haggar’s one-year leave-of-absence policy was unreasonable; rather, she contends that the policy was not uniformly enforced. Hernandez presented evidence that another Haggar employee, Consuelo Gonzalez, went on leave in September 1994 due to a workplace injury. Despite the continued existence of the leave-of-absence policy, however, Gonzalez was not discharged from Haggar until May 1997 when the company closed its Weslaco plant.

We find Hernandez’s argument unpersuasive. Gonzalez went on leave over two years after Hernandez was terminated, and it is undisputed that Gonzalez did not receive a salary while on leave and never returned to work at Haggar after the one-year period had elapsed. Even viewed in the light most favorable to the jury’s finding, the evidence shows, at most, that three years after Hernandez was terminated, Haggar failed to officially discharge one employee who had been on leave for over a year. This simply does not amount to more than a scintilla of evidence that the policy was not uniformly enforced or that Haggar’s explanation for firing Hernandez was false. Stated another way, while an employer’s discriminatory application of an absence-control policy may provide circumstantial evidence of retaliatory conduct, see Cazarez, 937 S.W.2d at 451, the Gonzalez example does not amount to such circumstantial evidence in this case. We therefore hold that there is no evidence to support the jury’s finding that Haggar retaliated against Hernandez for filing a workers’ compensation claim. Because there is no evidence of retaliation, we need not reach the issue of whether there is legally sufficient evidence to support the jury’s finding of malice.

Accordingly, without hearing oral argument, we grant Haggar’s petition for review, reverse the court of appeals’ judgment, and render a take-nothing judgment in favor of Haggar. Tex.R.App. P. 59.1.

Justice JOHNSON did not participate in the decision.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    NATIONAL WESTERN LIFE INSURANCE CO., Petitioner, v. Ella Mae ROWE, Individually and On Behalf of All Others Similarly Situated, Respondent.
    No. 02-1010.
    Supreme Court of Texas.
    May 13, 2005.

      J. Roger Williams, Jr., Catherine Lewis Robb, George & Donaldson, L.L.P., Austin, for petitioner.
    Denise M. Nixon, G. Wade Caldwell, Jesse R. Castillo, James Todd Hedgepeth, Martin Drought & Torres, Inc., San Antonio, Joe K. Longley, Law Offices of Joe K. Longley, Austin, R. Stephen Woodfin, Law Office of Stephen Woodfin, Kilgore, for respondent.
   PER CURIAM.

The trial court certified a nationwide class, and the court of appeals affirmed. Because the trial court did not conduct the rigorous analysis of the issues to be tried that we required in Southwestern Refining Co. v. Bernal, we reverse the court of appeals’ judgment and remand the case to the trial court.

Since 1965, National Western Life Insurance Co. has sold child riders on life insurance policies. Each rider provided life insurance in $1,000 increments up to $5,000 for children bsted in the application and any others thereafter born to or adopted by the applicant. Post-application children were covered without proof of insurability and without any obbgation on the insured parent to notify National Western of their existence. Generally, coverage ceased when a child reached age 25, or the parent died, or the policy was no longer in effect.

National Western did not notify an insured parent when every child listed in the application was over 25. That occurrence would have been irrelevant if the parent had had a subsequent child because coverage under the child rider would have continued for that child. National Western continued to bill the insured parent for the child rider, leaving it to the parent to stop paying when he or she no longer had, or intended to have, a child under 25. Most of the riders, but not all, contained the following provision or one like it:

Premiums are not due for this rider after it has stopped. If we accept a premium after termination, it does not mean that we are bable for benefits under this rider or that we waive the termination. We will refund any premiums so accepted.

Without contacting an insured, which it did not do, National Western had no way of knowing whether an insured was still paying for a child rider that no longer afforded coverage the parent desired. It refunded overpayments only on request. Over the years, it received only ten such requests. However, 81% of the policies lapsed, and the record before us contains no indication of the probable total amount of overpayments National Western received for child riders.

In 1977, Eba Mae Rowe bought a $15,000 life insurance policy with a $5,000 child rider covering her two children, the younger of whom was 7. She had no other children. After her younger child turned 25 in 1995, she continued to pay the child rider premium of $30 annually. In March 2000, she sued National Western on behalf of all its similarly situated policyholders for breach of contract, fraud, negligent misrepresentation, violations of the Texas Deceptive Trade Praetices-Consumer Protection Act, violations of article 21.21 of the Texas Insurance Code, unjust enrichment, and a constructive trust. The gist of her complaint is that National Western designed the child rider so that policyholders likely would not notice that they no longer had coverage and would continue to make premium payments anyway. Rowe claims actual damages equal to the over-payments, plus statutory and punitive damages.

The trial court certified a nationwide, opt-out class of “[a]ll purchasers, who were residents of the United States at the time of purchase, of ... NWL child riders [on specified forms] issued from June 15, 1965 to the date of this Order [June 22, 2001].” The court found that this group would include over 12,000 persons resident in 41 states. The comb’s order excepts from the class “[o]wners of active child riders who have children under 25 years of age as of the date of this Order, as listed on the policy application forms”. In its findings, the comb stated that class notice will instruct a recipient to fill out and return an attached form if he or she had post-application children or wanted to retain coverage. The form states that a failure to return it may result in a presumption that the recipient had no post-application children and, for active policyholders, in termination of their child rider coverage. The court’s findings do not explain why a recipient’s inaction should warrant such a presumption. The findings add: “On damages, it is expected that most of the damage calculation would be provided by expert testimony.” The findings do not explain how this calculation would be made without determining whether or at what point policyholders no longer wanted child rider coverage.

National Western pleaded limitations as a defense, and Rowe pleaded the discovery rule and fraudulent concealment. The trial court found that the discovery rule issues could be tried by asking the jury to “decide when a reasonable policyholder had met the discovery rule test and the fraudulent concealment test.” The court did not explain whether or how individual issues related to limitations will be determined. The court did conclude, however, that persons with policies terminated prior to January 1, 1980 should be excluded from the class because of “the increasing difficulty of locating policyholders, the further back the Class definition is extended”. The findings do not explain the court’s choice of that date.

The trial court concluded that Texas law should apply to all claims of all class members, essentially because National Western’s activities are centered in Texas. The court does not appear to have considered whether laws in states in which class members reside would provide them greater relief, or whether those states have a particular interest in the claims being made, especially considering a state’s interest in regulating the business of insurance as reflected in section 192 of the Restatement of Conflict of Laws (Second), which states:

The validity of a life insurance contract issued to the insured upon his application and the rights created thereby are determined, in the absence of an effee-tive choice of law by the insured in his application, by the local law of the state where the insured was domiciled at the time the policy was applied for, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the transaction and the parties, in which event the local law of the other state will be applied.

The trial court did not explain how it planned to dispose of issues of reliance with respect to claims in which reliance is an element.

The court of appeals affirmed the class certification. In so doing, it stated: “We view the evidence in the light most favorable to the trial court’s action, entertaining every presumption that favors its judgment.” In Henry Schein, Inc. v. Stromboe, we held that this deferential standard of review, both as stated and as applied, conflicted with the requirement in Southwestern Refining Co. v. Bernal that “actual, not presumed, conformance with [Rule 42 of the Texas Rules of Civil Procedure] remains ... indispensable.” This conflict, which gave us jurisdiction over the interlocutory appeal from a class certification order in Schein, likewise gives us jurisdiction in the present case.

The trial court did not perform the rigorous analysis required by Bernal to determine whether class action requirements have been met in this case. The court did not explain why a policyholder’s failure to respond to class notice should give rise to a presumption that the policyholder has no child under 25 and no longer desires child rider coverage, given that a common response to class action notices is to ignore them. The court stated that policyholders with children under 25 or still desiring child rider coverage “will be allowed to exclude themselves from the Class” at the end when proofs of claim must be submitted. But the trial court excepted such policyholders from the class definition, so it is not clear how the exclusion process is intended to work. The court gave no meaningful explanation for how it would try damages, actual and punitive; limitations issues, including discovery rule and fraudulent concealment issues; and reliance, in causes of action for which reliance is an element. The court did not explain why, given the number of individual issues, it determined that common issues predominate. The court did not explain why class members in another state should not have the benefit of that state’s law. Finally, the court did not analyze whether, given the difficulties of proceeding with a nationwide class, many of whose members’ claims predate the applicable limitations period by as much as 18 years, a class action is a superior means for resolving the dispute.

Accordingly, we reverse the judgment of the court of appeals and without hearing oral argument, remand the case to the trial court for further proceedings.

Justice JOHNSON did not participate in the decision.

      . 86 S.W.3d 285 (Tex.App.-Austin 2002).

      . 22 S.W.3d 425 (Tex.2000).

      . Tex. Bus. & Com.Code §§ 17.41-.63.

      . Tex. Ins.Code art. 21.21.

      . Restatement (Second) of Conflict of Laws § 192 (1971).

      . 86 S.W.3d 285 (Tex.App.-Austin 2002).

      . Id. at 293.

      . 102 S.W.3d 675 (Tex.2002).

      . 22 S.W.3d 425 (Tex.2000).

      . Schein, 102 S.W.3d at 690, citing Bernal, 22 S.W.3d at 434-435 (citations omitted).

      . See Tex. Gov't Code §§ 22.001(a)(2), 22.225(b)(3), (c); Schein, 102 S.W.3d at 687-688. Cf. Act of June 11, 2003, 78th Leg., R.S., ch. 204, §§ 1.05, 23.02(a) and (d), 2003 Tex. Gen. Laws 850, 898-899 (providing that House Bill 4's amendments to jurisdictional provisions do not apply in this case because the petition for review was filed before the amendments' effective date); Compaq Computer Corp. v. Lapray, 135 S.W.3d 657, 662 n. 4 (Tex.2004) (noting that the 2003 amendments did not apply).

      . See Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 n. 3 (Tex.1999) ("The party seeking the benefit of the discovery rule to avoid limitations has the burden of pleading and proving the discovery rule in a trial on the merits.”)

      . See Schein, 102 S.W.3d at 693-694; Compaq, 135 S.W.3d at 675-677.

      . See Schein, 102 S.W.3d at 695-699; Compaq, 135 S.W.3d at 671-674.

      . See Tex.R.App. P. 59.1.


author: HERVEY, J.,

text:
    Michael Shane GARDNER, Appellant, v. The STATE of Texas.
    No. PD-1131-04.
    Court of Criminal Appeals of Texas.
    May 4, 2005.
    Rehearing Denied June 22, 2005.
    Barry Green, Decatur, for Appellant.
    Tim Curry, Criminal Dist. Atty., Tarrant County, Charles M. Mallín, Asst. Chief of the Appellate Section, Michael R. Casillas, Asst. Criminal Dist. Atty., Fort Worth, Mollee Westfall, Asst. Criminal Dist. Atty., Matthew Paul, State’s Atty., Austin, for state.

      . At least one federal circuit has decided that the "constitution does not require the specific admonitions listed in Boykin as a condition precedent to the validity of a guilty plea,” and that all a trial court must do to comply with Boykin’s mandate is to explain to guilty-pleading defendants "that they have the right to plead guilty and that, if they plead guilty, they waive the right to trial.” See U.S. v. Henry, 933 F.2d 553, 559 (7th Cir.1991), cert. denied, 503 U.S. 997, 112 S.Ct. 1703, 118 L.Ed.2d 412 (1992) and cases cited. It is not neces-saiy to decide this case on the basis that the “constitution does not require the specific admonitions listed in Boykin as a condition precedent to the validity of a guilty plea.”

   OPINION

HERVEY, J.,

delivered the opinion of the Court

in which KELLER, PJ., MEYERS, WOMACK, KEASLER, HOLCOMB and COCHRAN, JJ., joined.

We decide, as a matter of federal constitutional law, that the record in this particular case adequately shows that appellant voluntarily pled guilty.

Appellant was charged in a five count indictment with aggravated sexual assault of a six-year-old girl. These charges arose out of one sexual encounter involving appellant, the victim and the victim’s biological father who was appellant’s long-time friend and a police officer. Appellant provided the police with a written confession which appellant unsuccessfully sought to have suppressed. Appellant also filed an election to have a jury assess punishment and an application for community supervision (probation) “in the event a punishment phase of the trial is necessary.”

Appellant pled guilty before the jury after the prosecution read Counts I through IV of the indictment. Without any objection from appellant, the trial court accepted appellant’s guilty plea after ascertaining that appellant was pleading guilty for no other reason than that he was guilty and not because of any promise made on behalf of the State.

[THE COURT]: Thank you.
Mr. Green [defense counsel], I would ask at this time of the Defendant, how do you plead to the charge in the indictment?
[THE DEFENDANT]: Guilty, your Honor.
[THE COURT]: Thank you. Ladies and gentlemen of the jury, at this time the Defendant has entered a plea before you in this case of guilty.
At this time that takes out the — basically the first phase of this case that we have discussed, that being the guilt/innocence stage.
Is the Prosecution ready to proceed with the punishment stage at this time?
[THE PROSECUTION]: The State is ready, Judge.
[THE COURT]: And is the Defendant ready to proceed?
[DEFENSE COUNSEL]: The Defendant is ready, your Honor.
[THE COURT]: Very well.
You may make an opening statement with regards to the punishment stage of this case.
[THE PROSECUTION]: Thank you, Judge.
May it please the Court?
[THE COURT]: Yes, sir.
[THE PROSECUTION]: Counsel for Defense.
[THE COURT]: And before you get started, I think I need to do one other thing.
[THE PROSECUTION]: Yes, sir.
[THE COURT]: At this time the Court has heard the Defendant’s plea of guilty.
If the Defendant would please stand at this time.
[THE DEFENDANT]: (The Defendant complied.)
[THE COURT]: And I would simply ask the Defendant, are you pleading guilty because you are guilty and for no other reason?
[THE DEFENDANT]: Yes, your Hon- or.
[THE COURT]: Very well.
You are not—
And I’m asking—
Are you—
You are not — -You are not pleading guilty because of any promise that anyone has made you on behalf of the State of Texas. Is that correct?
[THE DEFENDANT]: Yes, your Hon- or.
[THE COURT]: All right. Then at this time the Court does accept your plea of guilty, and at this time the Court does find you guilty of the offense as charged in the indictment.
You may be seated.
And you may proceed.

The prosecution presented evidence at the punishment phase establishing appellant’s guilt of the offenses to which appellant pled guilty. On cross-examination, appellant’s counsel asked Texas Ranger Ray, who obtained appellant’s confession, whether he believed that appellant accepted responsibility by confessing.

Q. [DEFENSE]: By giving a three-page statement, do you believe [appellant] accepted responsibility by doing so?
[THE PROSECUTION]: Your Honor, I’m going to object as speculation. That’s [sic] calls for speculation on the part of this witness.
[THE COURT]: Overruled.
Q. By giving his statement to you is he accepting responsibility?
A. [RAY]: I don’t know if he accepted responsibility or not. The overwhelming emotion I saw was a sense of relief.
Q. Would you at least categorize it as doing the right thing when giving his statement?
A. Yes, sir, I would say that.

Appellant’s counsel referred to appellant’s guilty plea several times during the punishment phase. For example, during his opening statement, counsel claimed that the guilty plea demonstrated appellant’s acceptance of responsibility and that it relieved the young victim from having to “come into the courtroom” and the jury from the “grueling experience” of deliberating appellant’s guilt/innocenee. Appellant’s counsel also stated during his opening statement that appellant would testify “even though the Fifth Amendment means that he can sit over there and not say anything.”

[DEFENSE COUNSEL]: May it please the Court.
Ladies and gentlemen, [appellant] just did what he has always done, and that is accept his responsibility, like we want people to do.
He’s done a couple of things as a consequence—
There’s a couple of consequences that have occurred because of that. Number two, he has removed from your duties the responsibility to deliberate about guilt or not guilt. You no longer have to do that. You no longer have to go through that grueling experience. He made that decision for you.
Secondly, he’s alleviated the need for the State to prove their case to you. They no longer have to, because he has pled guilty, and more importantly, he’s alleviated the need for a child to come into the courtroom.
He has done that.
And I expect he is going to go one step further, and even though the Fifth Amendment means that he can sit over there and not say anything, I expect that he is going to want to talk to you. And I expect that he is — will want to explain what happened. I don’t expect him to make excuses. I don’t expect for him to paint himself as a victim. I expect him to be stand-up guy, like he’s always been.

Appellant testified at the punishment phase that he was the same one who admitted his guilt before the judge and the jury.

Q. [DEFENSE]: Michael, you are obviously the same Michael Shane Gardner that’s [sic] on trial here today. Correct?
A. [APPELLANT]: Yes, sir.
Q. And the same one that [sic] has admitted guilt yesterday before the Judge and before this jury. Correct?
A. Yes, sir.

Appellant’s counsel argued during closing jury arguments that appellant’s guilty plea was “worth something” because it showed that he accepted responsibility.

[DEFENSE]: There’s probably been no greater crime in this country over the last 10 years than that of personal responsibility.
If [appellant] had pled not guilty, I suppose the prosecutor would be up here arguing about personal responsibility. That there aren’t people in this country, there aren’t enough of them that won’t say I did wrong when they’ve done wrong.
There won’t—
There’s not enough people that admit their shortcomings when they have done something wrong and have a shortcoming.
[Appellant] did something that you don’t see in this criminal justice system every day. You see him plead guilty to a jury, and that’s worth something, despite the fact that the prosecutors indicate that it is not.
They say, oh, he didn’t have a choice.
Oh, he did.
But he has a confession. Look.
Could have challenged that confession. It’s amazingly—
It’s not in his handwriting. It was not audiotaped. It wasn’t videotaped. His initials making corrections are nowhere in it. It’s an almost comical confession from a — from a Ranger, although I certainly respect him, but could he have said those aren’t my words?
Yes, he could have; but he did not.
He took responsibility by accepting that statement and not challenging it. He obviously took responsibility in giving the statement. You’ve heard it time and time again. Was there any coercion on the Ranger’s part?
No.
This is something that man wanted to do, and I don’t think there’s any question about that whatsoever. It is something that he knew. It was the right thing to do to talk to the police and give a statement to the police, even though he — -he knew it had dire consequences. He did it even though the Ranger gave him every opportunity to walk away.
He certainly took responsibility like you’ve heard after his statement. He could’ve ran like the wind. He could’ve been a transient right now in Mexico, but he did not. He stayed to accept his punishment.
He could have contacted [his police officer friend] and let [him] do whatever he wishes to do, and he did not.
He, once again, accepted responsibility.
And yesterday, of course, he accepted responsibility once again by pleading guilty, and I told you a couple of ramifications; number one, you guys didn’t have to worry about it and have to fight and deliberate about it and have to go through that ordeal. He saved you that. He did save [the victim] from having to come in here, but there’s other consequences, as well, because now he is a convicted felon and a sex offender, and in this society, you might as well have a scarlet letter on your forehead.
He will forever be ostracized by his community. He will forever be shunned by his neighbors. He will forever have his picture on the Internet where friends, family, and even casual acquaintances will look at it and speculate as to what occurred, and that is for life.
He also subjected himself to responsibility for and by taking the stand yesterday — today and talking to you. He did not have to do that, but he wanted to. He wanted to face his accusers. He wanted to bear his sins. He’ll tell you about the drag use, the marijuana use, and the methamphetamine use.

The prosecution asked the jury to sentence appellant to life in prison. Appellant’s counsel asked the jury to grant appellant probation. The jury sentenced appellant to 35 years in prison on each count.

Appellant claimed on direct appeal that his guilty “plea was involuntary and a violation of his federal due process rights because the [trial] court failed to admonish him of his various constitutional rights and determine that his plea was intelligently and voluntarily made.” See generally Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Aguirre-Mata v. State, 125 S.W.3d 473 (Tex.Cr.App.2003). Appellant argued in the Court of Appeals:

This is not a case of solely failing to admonish the Defendant regarding the applicable range of punishment as required by [Article 26.13(a)(1), Tex.Code CRiM. PROC.]. The Defendant is well aware that such a failure is not consider [sic] constitutional error and that a record reflecting that the applicable range of punishment was discussed during voir dire is enough to dispel a claim that the Defendant’s “substantial rights” were violated under [Tex.R.App. PROC. 44.2(b) ]. (Citations omitted).
Nor is this case about failing to admonish the Defendant about the sexual offender requirements of [Article 26.13(a)(5) ]. The Defendant also admits that if that were his only complaint his visit before this court would be short lived. (Citations omitted).
This case, however, concerns a complete absence of the trial court to admonish the Defendant regarding any of his rights in order to insure that the plea is intelligently and voluntarily made — a failure that implicates the due process clause of the United States Constitution as held in [.Boykin v. Alabama ]. In Boykin, the record was completely silent “concerning [the] plea.” See Boykin, 89 S.Ct. at 1710 (“so far as the record show[ed], the judge asked no question of the [Defendant] concerning his plea, and [the Defendant] did not address the court.”). The key to the holding, of course, was that before a trial judge can accept a guilty plea, there must be an affirmative showing that it was given intelligently and voluntarily. Id,., 89 S.Ct. at 1711. In order to find that the plea was entered “intelligently” or “voluntarily,” the court must “canvass[ ] the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequences.” Id., 89 S.Ct. at 1712.

The Court of Appeals, however, decided that the trial court’s error in failing to provide the Article 26.13 admonishments applicable to appellant did not affect appellant’s substantial rights under the harm analysis for non-constitutional error set out in Rule 44.2(b) because, among other things, appellant did not show that he would not have pled guilty had the trial court properly admonished him. See Gardner v. State, slip op. at 2-4 No. 02-03-110-CR (Tex.App.-Fort Worth, May 27, 2004) (not designated for publication). We exercised our discretionary authority to review this decision. The two grounds upon which we granted review state:

1) The Court of Appeals erred in holding the trial court’s error in failing to adequately admonish the Defendant was statutory error under [Aguirre-Mata ] instead of constitutional error under [Boykin v. Alabama ].
2) The Court of Appeals erred in failing to address whether the admonishments and inquiries of the Defendant by the trial court was sufficient to satisfy [Boy-kin v. Alabama ] that the plea was intelligently and voluntarily made.

We agree with the claim presented in ground two that the state-law issue addressed by the Court of Appeals was not the constitutional issue that appellant raised under Boykin. Whether a trial court has complied with Article 26.13 and whether it has complied with Boykin are two separate issues. See generally Aguirre-Mata, 125 S.W.3d at 474-77.

With respect to ground one, appellant makes essentially the same claim here that he made in the Court of Appeals. We initially note that appellant does not claim, and the record does not support a finding, that appellant’s guilty plea “cannot stand as an intelligent admission of guilt.” See Henderson v. Morgan, 426 U.S. 637, 644-45 n. 13, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976) and at 649-50 n. 2, 96 S.Ct. 2253 (White, J., concurring) (in cases where court reads the indictment to the defendant at arraignment or at time of plea, defendant’s guilty plea may well be deemed a factual admission that he did what he is charged with doing). Nor can it be said that appellant was terrorized into pleading guilty. See Boykin, 395 U.S. at 242-43, 89 S.Ct. 1709 (“[i]gnorance, incomprehension, coercion, terror, inducements, subtle or blatant threats might be a perfect cover-up of uneonstitutionality”); Aguirre-Mata, 125 S.W.3d at 475 n. 7.

Rather, appellant claims that his guilty plea is invalid under Boykin because the record does not affirmatively show that appellant understood the nature of the constitutional due process protections that he was waiving when he pled guilty. See Brady v. United States, 397 U.S. 742, 747-48 n. 4, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (new element added in Boykin to substantive requirement that a plea of guilty must be intelligent and voluntary is the “requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily”); see also Benitez, 124 S.Ct. at 2341 n. 10 (conviction obtained by guilty plea must be reversed when record contains no evidence that defendant knew of the rights he was putatively waiving). In Aguirre-Mata, this Court noted that Boykin did not specifically set out what must be “spread on the record” to comply with Boykin’s mandate. See Aguirre-Mata, 125 S.W.3d at 475. In addition to mentioning things like the invalidity of guilty pleas induced by “terror,” Boykin mentioned three constitutional rights that a guilty plea waives: the privilege against compelled self-incrimination, the right to a jury trial and the right to confront one’s accusers. Boykin, 395 U.S. at 243-44, 89 S.Ct. 1709.

The record in this case adequately shows that appellant understood that he was waiving these rights when he pled guilty. This may be inferred, in part, from appellant’s counsel’s statements during the punishment phase mentioning that appellant would testify even though he did not have to under the Fifth Amendment and that appellant’s guilty plea saved the victim from having to testify and saved the jury from the “grueling experience” of determining appellant’s guilt. Cf. Henderson, 426 U.S. at 647, 96 S.Ct. 2253 (appropriate to presume in most cases that defense counsel routinely explains the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit); Henry, 933 F.2d at 559 (defendant’s awareness of constitutional rights waived by guilty plea can be reasonably inferred from the transcript).

The voluntary nature of appellant’s guilty plea is further shown in the record by the overwhelming evidence that appellant’s guilty plea was part of a strategy (which we may also infer was done in consultation with competent counsel) to persuade the jury to grant appellant probation. Unlike this case, the record in Boykin was silent on whether the defendant’s guilty plea was part of some trial strategy. See Boykin, 395 U.S. at 240, 89 5.Ct. 1709 (“Trial strategy may of course make a plea of guilty seem the desirable course. But the record is wholly silent on that point and throws no light on it.”). We further note that in Brady, the Supreme Court upheld the validity of a guilty plea accompanied by admonishments similar to those here. Brady, 397 U.S. at 743-44 n. 2, 90 S.Ct. 1463 and at 754-55 (noting that defendant’s guilty plea was “entered in open court and before a judge obviously sensitive to the requirements of the law with respect to guilty pleas”).

The judgment of the Court of Appeals is affirmed.

PRICE and JOHNSON, JJ., concurred.

      .This is in accordance with our prior decisions holding that a trial court’s failure to provide the Article 26.13 admonishments is non-constitutional error which is subject to a Rule 44.2(b) harm analysis. See Aguirre-Mata, 125 S.W.3d at 474-76; Carranza v. State, 980 S.W.2d 653, 656 (Tex.Cr.App.1998). Since our decision in Aguirre-Mata, the United States Supreme Court has applied the equivalent of our Rule 44.2(b) harm standard to a trial court's failure to comply with the federal equivalent of Article 26.13 (which the defendant raised for the first time on appeal) and held that this unpreserved error is harmless unless the guilty-pleading defendant shows "a reasonable probability that, but for the [unpreserved] error, he would not have entered the plea.” See United States v. Benitez, U.S., 542 U.S. 74, 124 S.Ct. 2333, 2340, 159 L.Ed.2d 157 (2004); Aguirre-Mata, 125 S.W.3d at 475-76 (comparing state and federal practice).

      . In Henderson, 426 U.S. at 644-45 n. 13, 96 S.Ct. 2253 the Supreme Court stated:
      A plea may be involuntaiy either because the accused does not understand the nature of the constitutional protections that he is waiving (citation omitted), or because he has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt. Without adequate notice of the nature of the charge against him, or proof that he in fact understood the charge, the plea cannot be voluntary in this latter sense. (Citation omitted).

      . Whether appellant, in fact, understood the nature of these constitutional protections is irrelevant under Boykin. See Aguirre-Mata, 125 S.W.3d at 474-75; Boykin, 395 U.S. at 244-45, 89 S.Ct. 1709.

      . It was not necessary for Boykin to specifically set out what must be "spread on the record” since the record in that case was completely silent "concerning the plea." See Boykin, 395 U.S. at 239, 89 S.Ct. 1709.

      . In Brady, 397 U.S. at 743^-4, n. 2, 90 S.Ct. 1463 the trial court admonished the defendant as follows:
      [THE COURT]: You understand that in [pleading guilty] you are admitting and confessing the truth of the charge contained in the indictment and that you enter a plea of guilty voluntarily, without persuasion, coercion of any kind? Is that right?
      [DEFENDANT]: Yes, your Honor.
      [THE COURT]: And you do do that?
      [DEFENDANT]: Yes, I do.
      [THE COURT]: You plead guilty to the charge?
      [DEFENDANT]: Yes, I do.


author: PER CURIAM. COCHRAN, J.,

text:
    Ex Parte Steve RODRIGUEZ.
    No. WR-44330-02.
    Court of Criminal Appeals of Texas.
    June 15, 2005.
    Mick Mickelsen, Dallas, for Appellant.
    Dan Thornberry & Beth Welsh, Asst. District Attorney’s, San Antonio, Matthew Paul, State’s Attorney, Austin, for State.
   ORDER

PER CURIAM.

This is a subsequent application for writ of habeas corpus filed pursuant to Texas Code op CRIMINAL PROCEDURE, Article 11.071, § 5. This cause was remanded to the convicting court for consideration of applicant’s claim that he is mentally retarded and his execution would violate the United States Constitution.

The convicting court conducted a hearing, in which the applicant and the State presented the testimony of witnesses and introduced exhibits in support of their respective positions. After consideration, the judge of the convicting court entered his findings of fact and conclusions of law. The trial judge recommended that relief be denied.

This Court has reviewed the record with respect to applicant’s allegations. We adopt the trial judge’s findings and conclusions. Applicant has failed to show, by a preponderance of the evidence, that he has adaptive behavioral deficits sufficient to be considered mentally retarded or to place him in that category of persons for whom a national consensus against execution exists. See Atkins v. Virginia, 536 U.S. 304, 317, 122 S.Ct. 2242, 2250, 153 L.Ed.2d 335 (2002). Based upon the trial court’s findings and conclusions and our own review, the relief sought is denied.

HERVEY, J., not participating.

HOLCOMB, J., dissents.

COCHRAN, J., filed a statement concurring in the denial of relief in which PRICE, J., joined.

COCHRAN, J.,

filed a statement concurring in the denial of relief in which PRICE, J., joined.

STATEMENT

In this subsequent writ application, filed pursuant to Article 11.071, § 5, of the Texas Code of Criminal Procedure, applicant presents a claim of mental retardation un-del’ Atkins v. Virginia. After we remanded the application, the trial court conducted an evidentiary hearing and considered a wealth of documentary information. The trial judge then signed findings of fact and conclusions of law and recommended that relief be denied. We have reviewed the record, and we adopt the trial judge’s findings and conclusions. Therefore, we deny relief.

Because this case presents a close question on the ultimate factual issue of mental retardation, I add the following remarks.

I.

Applicant was indicted for the murder of Agnes Herden committed in the course of a burglary or robbery on July 4, 1990. Against his attorney’s advice, applicant pleaded guilty to the capital murder charge. At his 1992 trial, the jury answered the two “aggravating” special issues affirmatively and the mitigation issue negatively, and the trial judge sentenced applicant to death. This Court affirmed that conviction and sentence on direct appeal. Rodriguez v. State, 899 S.W.2d 658 (Tex.Crim.App.1995).

The evidence at trial showed that applicant had entered Ms. Herden’s home in the early hours of the morning, stabbed the 80-year-old woman in the face, neck, and upper chest, hit her with a blunt object, and left her dead in her bed. He stole two television sets — both of which were left abandoned outside the home— some jewelry, and a pistol. At 4:80 a.m., applicant arrived at his sister’s trailer home where he sprinkled salt and pepper on the steps in an apparent effort to cover his scent. He soaked his blood-stained clothes in alcohol. Applicant told two friends who were in the trailer that he had stabbed a “black guy,” and showed them the jewelry and pistol he had stolen, as well as a knife (later determined to be the murder weapon) that he had taken with him. Applicant gave one of the men a dollar to buy a can of spray paint, and the three friends inhaled paint fumes until noon, when police officers came to the trailer. Applicant told his friends that he needed to hide from the police, but he made no effort to do so. Instead, he lay down on the floor, closed his eyes and pretended to sleep. The officers arrested him.

At first applicant denied committing the murder, but when a police officer confronted him and told applicant that he knew that this was a he, applicant gave a full confession. He explained that

I just had a lot of things on my mind. I have a lot of family problems because I can’t never talk to my family. I did not rape the lady and I did not have any sex with the lady. I just lost my mind. This statement is the complete truth as best I can remember it. I am sorry that I killed the lady and I really didn’t mean to do it.

During the punishment phase, Dr. James Sherman testified for the State concerning applicant’s mental health testing in 1982 when, at the age of fourteen, he was in the Bexar County Juvenile Detention Center for “sniffing glue” and auto theft. At that time, applicant already had a four-year history as a runaway, committing various criminal mischief and theft offenses. In 1982, applicant described himself to Dr. Sherman as “being a discipline problem,” but he denied having ever been suspended from school or having been in special education classes. He said that he had no idea what his grades in school were because he always gave his report card to his sister and did not look at it. His mother had died when he was five, and he did not know where his father was. He moved around and lived with various relatives. Although he was only fourteen, he said that he got drunk frequently, smoked marijuana, and used inhalants “a lot.”

Dr. Sherman testified that his 1982 testing of applicant’s overall level of functioning was measured on the Wechsler Scale as being in the mild (50-70) range of mental retardation. He had a full-scale IQ of 60, with a verbal score of 57 and a performance score of 70. Although concluding that applicant was legally competent, Dr. Sherman diagnosed him as having “overanxious disorder of adolescence,” “undersocialized nonaggressive conduct disorder of adolescence,” and “borderline intellectual functioning with a repetitive language deficit.” He recommended that applicant be placed in a special education program and a stable home, and that he enter into a “behavioral management contract” with his juvenile probation officer. At the 1991 trial, Dr. Sherman explained that, in his opinion, applicant’s ability to function was “much higher” than his full-scale IQ score of 60 implied. Applicant was “absolutely not” mentally retarded, rather he was functioning in the borderline range.

Dr. John Sparks also testified for the State. In his opinion, applicant was competent to stand trial, was not mentally retarded, and was not insane or suffering from any severe mental disease or defect. He found no sign of organic brain damage which is often associated with inhalant abuse. He stated that even though applicant’s most recent IQ score of 68 was in a “range that would normally be retarded,” he believed that applicant “was much more able to adapt to the community and function” than his IQ score suggested. Dr. Sparks explained that applicant deals with things “on a primitive level,” but “[h]e takes care of himself. He is able to find a place to stay. He makes relationships reasonably well. He’s not an isolated, withdrawn person.”

During closing arguments at the punishment stage, applicant’s attorney argued that applicant was both mentally ill and mentally retarded. Nonetheless, the jury did not find that there were sufficient mitigating circumstances to warrant a sentence of life imprisonment rather than a death sentence. Therefore, the trial court imposed a sentence of death.

In his first habeas application, applicant claimed that his trial attorneys failed to request the assistance of a “partisan” psychiatrist to evaluate his mental functioning, and, therefore, they provided ineffective assistance of counsel. At this hearing, Dr. Michael Arambula testified for applicant and stated that, in his opinion, applicant was mildly mentally retarded and functioned “right at” the line that separates mild mental retardation from borderline intellectual functioning. He found that applicant functioned like a six-to-eight-year-old child in some areas and a twelve-to-thirteen-year-old in others. In Dr. Arambula’s opinion, applicant had significant impairments in ten out of eleven specific adaptive behavior categories. He had an “unfortunate upbringing” and a long history of depression and very significant anxiety which made him have trouble concentrating, impaired his decisionmak-ing, and led to low self-esteem and irritability. With his long-term inhalant abuse, applicant acted impulsively, was easily agitated, and could not think clearly. Because of the interaction between a low intellectual level, clinical depression, and inhalant-affected behaviors, he was going to be “more irritable, can’t concentrate, be hyperactive.... He probably would be disruptive in class because he can’t sit still.” However, Dr. Arambula also agreed that applicant’s impulsivity and poor judgment would “be a common characteristic of a 22 or 23-year-old school drop out from a broken home with a history of drug use.”

Dr. Margot Zuelzer, a psychologist who also testified for applicant at this first habeas hearing, tested his IQ and believed that applicant’s verbal IQ score of 68 indicated mental retardation, even though his overall score of 71 was not in the retarded range, and his performance IQ of 77 was outside the range of mental retardation. She noted that applicant is “functionally illiterate” and has a “language positing problem.”

Dr. Sparks testified again at the first habeas hearing and largely agreed with Drs. Arambula and Zuelzer. He noted that everyone concurred that applicant was “at the borderline” or “on the cusp” of mental retardation, but that “[t]here aren’t any exact cutoffs between the various groupings ... they blend sometimes into each other.... The borderline really is a judgmental borderline.... It’s not an exact line separating one from the other.” Dr. Sparks believed that applicant fell on the “not mentally retarded” side of the line because he functioned at a higher level than his IQ scores would otherwise indicate, except in the area of academic achievement.

According to one of applicant’s sisters who testified at the first habeas hearing, applicant was a good student when he first started school, but he began having problems after his mother died. She also knew he had problems with spray paint, but she never saw him inhaling it. Another sister testified that applicant was sometimes a “troublemaker” who used to fight when he was young. The mother of applicant’s child testified that applicant used spray paint “all the time” when they were living together. Applicant worked for his brother-in-law in the construction business, but couldn’t get a good job because he wasn’t very smart. One of applicant’s trial attorneys testified at the habeas hearing that he never noticed any mental retardation disability in his client.

This court denied relief on that first habeas application on April 12, 2000. Applicant then sought habeas relief in federal district court. While this writ was still pending, but after the Supreme Court delivered its opinion in Atkins, applicant filed a subsequent federal writ raising a mental retardation claim. On March 31, 2003, the federal district court dismissed that petition without prejudice so that applicant could return to state court to raise his Atkins claim and then, should it be necessary, he could return to federal court after exhausting state remedies. Rodriguez v. Cockrell, Civil No. SA-00-CA-443EP, 2003 WL 1906154 (W.D.Tex. March 31, 2003). On September 10, 2003, this Court entered an order finding that applicant had met the threshold criteria for raising a subsequent claim under Tex.Code Crim. PROC. Art. 11.071, § 5, and we remanded the case to the trial court for further proceedings.

On remand, the trial court heard additional testimony concerning applicant’s mental abilities. Dr. Sherman testified again and stated that the fact that a person has a subaverage IQ score does not necessarily mean that he is mentally retarded. An IQ score is indicative of a lessened capacity for doing well in academics, but environmental factors — a stable home, supportive parents, a stable school situation, the language spoken in the home, peer groups, alcohol and drug abuse — all influence academic achievement and impact IQ scores. Dr. Sherman believed that applicant was severely learning disabled and did not test well. He noted that “the whole verbal spectrum of the IQ test is really culturally based,” and therefore a lack of academic achievement and a low reading ability will “inhibit your performance on the test.” Dr. Sherman also expressed his concern that the adaptive deficiencies prong of mental retardation had no objective or quantifiable component.

Dr. Sparks testified again as well. He, too, expressed concern that the adaptive functioning criteria of mental retardation are not objective: “There’s a great deal of subjective input. The observation of the individual, the history that he gives, the history obtained from other sources like family or work history, if there is work history.” The determination of whether one has significant adaptive skills deficits is really “a judgment call.” Although admitting that it was “a close call,” Dr. Sparks reiterated his opinion that applicant was not mentally retarded. His opinion was based upon the facts that applicant worked; had relationships with other people, including family; and had the “ability to adapt to some level above what I would expect a retarded person to adapt in our society.” Dr. Sparks also explained that applicant “tested badly” because of his high anxiety and low motivation levels. Dr. Sparks noted that applicant could communicate reasonably well while in jail and that his “sick call requests” were written very logically and asked for specific things. Applicant wrote his medical form information “at a level that’s higher than any retarded person could.”

Dr. Jim Patton, an adjunct professor of special education at the University of Texas, testified for applicant at the second writ hearing and he agreed with Dr. Sparks that there is a “moderate” correlation between intellectual ability and adaptive behavior. Dr. Patton interviewed applicant and some of his family members and concluded that applicant had shown evidence of adaptive skill deficits before age eighteen, particularly in the areas of communication and academic achievement. He had no opinion whether applicant was presently mentally retarded.

The trial court also considered a written affidavit by Dr. Ruth Luckasson, a special education professor at the University of New Mexico. She did not evaluate applicant personally, but stated that the opinions of Drs. Sparks and Sherman that applicant was “borderline and did not have deficits in adaptive skill areas,” were not supported by their records. She thought that the clinical data developed by Drs. Sparks and Sherman support a diagnosis of mental retardation.

The State offered applicant’s prison records that show he was a member of the Mexican Mafia and that he had numerous disciplinary violations. A recent prison mental status examination report concluded that applicant’s adaptive skills were “normal” as to coping ability and that he had no skills deficit.

II.

The trial court has now made its findings of fact and conclusions of law based upon the entirety of the testimony and records. The trial court summarized its conclusion in the following manner:

The applicant had the burden to establish by a preponderance of the evidence each of the three elements of mental retardation: onset during the developmental period, subaverage intellectual functioning, and significant deficits in adaptive skills. The applicant has failed to establish significant deficits in adaptive skills. The expert evidence is in conflict, but the question is not necessarily controlled by expert testing. There is lay evidence in the form of observations by prison and state school officials that applicant did not have significant adaptive deficits. There is evidence that helps explain why applicant could have poor I.Q. scores and yet not have adaptive skills deficits and thus not be mentally retarded. There is evidence that applicant is not docile or easily manipulated by others, and is in fact aggressive and manipulative. There is evidence that applicant is able to communicate and function in his environment.

Based upon those factual findings and legal conclusions, the trial court recommends that this Court deny relief.

All of the experts agreed that applicant’s numerical IQ level is at the borderline or below the cut-off level for a diagnosis of mental retardation. There is also expert and lay witness evidence in this record which would support a finding that applicant does suffer a deficit in adaptive skills, and there is evidence in this record which supports the trial court’s finding that applicant does not suffer a deficit in adaptive skills. A finding on either side of this question is supportable by the record evidence. But as a court reviewing only the cold record, we must be especially deferential to the trial court’s factual findings as he is “Johnny-on-the-Spot” and able to make credibility and demeanor determinations of the witnesses that we are not capable of making on habeas review. There are also statements in the two habe-as hearings that the trial court and advocates were personally familiar with both Drs. Sherman and Sparks and their experience and expertise in the mental health field.

I nonetheless reiterate my concern that “[t]he adaptive behavior criteria are exceedingly subjective, and undoubtedly experts will be found to offer opinions on both sides of the issue in most cases.”

It seems to me that, with its decision in Atkins, the Supreme Court is moving back toward the pre-Furman days of wholly subjective criteria in determining whether a particular person is or is not subject to the death penalty. As experts on both sides in this case testified, there are no objectively verifiable standards by which to gauge whether a specific person does or does not suffer the kind of significant “adaptive deficits” that a diagnosis of mental retardation requires. Nor are there any scientifically verifiable standards by which one might measure whether a person’s academic, social, or functional deficits are related to innate mental deficiencies, bad upbringing, impoverished environment, bad moral character, emotional problems, poor habits, lack of motivation, drug or alcohol dependence, or other factors.

As school children we were taught that King Solomon weighed all of the evidence before him and made a reasoned decision; Nero divined merit on a whim and just pointed his thumb up or down. I fear that, under Atkins and the subjective legal definition of the “adaptive deficits” prong of mental retardation, we are moving farther from King Solomon and closer to Nero. If there is evidence in the record to support the factfinder’s conclusion, by a preponderance of the evidence, that a person does or does not suffer from significant “deficits in adaptive behavior” — whatever that may mean to the factfinder- — -that conclusion must be affirmed.

In Atkins, the Supreme Court may have intended to create a “bright-line” rule that those who are mentally retarded are, because of their lesser moral culpability, exempt from the death penalty. But I fear that there is no such bright line. There is, on the contrary, broad agreement among mental health experts that determining whether a person suffers from the type and level of “adaptive deficits” that qualifies for a mental retardation diagnosis is highly subjective and largely a matter of individual judgment. Under Atkins, the ostensible issue for the factfinder in a death penalty case is, “Is this person mentally retarded?” As we see in this case, there may be no clear-cut answer to that question. Absent the possibility of a rigorous, scientifically reliable and verifiable “yes-or-no” determination, the relevant question perhaps ought to be, “Do you believe that the defendant is sufficiently mentally responsible for his conduct such that the death penalty is an appropriate punishment?” This is analogous to the Texas statutory mitigation question which, at bottom, asks “Do you believe that the defendant is sufficiently morally responsible for his conduct such that the death penalty is an appropriate punishment?”

In any event, the “evolving standards of decency” of the Eighth Amendment depends upon the collective judgment of the twelve ordinary citizens who sit in judgment of the case before them. Their assessment is the best determinant of fairness in assessing both mental and moral responsibility in cases of capital crimes committed by those whose mental capacity and competency is in doubt. Thomas Jefferson had it right: “I know of no safe depository of the ultimate powers of the society but the people themselves, and if we think them not enlightened enough to exercise that control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion.” Expert testimony and various mental retardation criteria may inform the factfinder’s discretion. But it is nonetheless the factfinder who must ultimately decide whether a particular person “who claim[s] to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus” that the death penalty is an inappropriate punishment.

Based upon the evidence in the record, I agree that the trial court did not err in concluding that applicant failed to prove, by a preponderance of the evidence, that he is mentally retarded. Therefore, I join the Court in denying applicant relief on his mental retardation claim.

      . 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

      . Evidence at the capital murder trial showed that applicant and his friends accosted other, smaller children, stole their bikes, and threatened to beat them up with chains and sticks.

      . Tex.Code Crim. Proc. art. 37.0711, § 3(e).

      . Dr. Arambula testified that applicant’s extensive record for prison disturbances, including one incident in which he stabbed a fellow inmate five times, may have been the result of his depression and "because he was so anxious."

        .Ex parte Briseno, 135 S.W.3d 1, 12-13 (Tex.Crim.App.2004) (in habeas context, "we afford almost total deference to the trial judge's determination of the historical facts supported by the record, especially when those fact findings are based on an evaluation of credibility and demeanor. However, if the trial court's ruling is not supported by the record, this Court may reject the findings”) (footnote omitted); Ex parte Franklin, 72 S.W.3d at 671, 675, n. 5 (Tex.Crim.App.2002) ("although this Court is not bound by the findings of the trial court in post-conviction habeas corpus proceedings, such findings are considered if supported by the record"); Ex parte Evans, 964 S.W.2d 643, 648 (Tex.Crim.App.1998) ("while this Court is not bound by the findings of a habeas judge in a habeas corpus proceeding, where the findings are supported by the record, they should be accepted by this Court").

      . Ex parie Briseno, 135 S.W.3d at 8.

      . Furman v. Georgia, 408 U.S. 238, 310, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Stewart, J., concurring) (state death penalty statutes were unconstitutional because they gave juries "open-ended, unstructured discretion” in deciding whether to impose death penalty);
        compare Jurek v. Texas, 428 U.S. 262, 273-74, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) (joint opinion of Stewart, Powell, & Stevens, JJ.) (holding Texas death penalty statute constitutional because it "guided and focused the jury’s objective consideration of the particularized circumstances and the individual offense and the individual offender”).

        . Atkins, 536 U.S. at 321, 122 S.Ct. 2242 (holding that execution of those found to be mentally retarded is excessive under the "evolving standards of decency” of the Eighth Amendment).

      . Thomas Jefferson, letter to William Charles Jarvis, September 28, 1820.

      . Atkins, 536 U.S. at 317, 122 S.Ct. 2242.