Texas Court of Criminal Appeals Reverses Course, Takes A Second Foreign National with Intellectual Disability Off Death Row

For second time in eight days, the Texas Court of Criminal Appeals (TCCA) has reversed course after initially rejecting a death-row prisoner’s claim of intellectual disability and has resentenced the prisoner to life. The decisions, both involving foreign nationals and both supported by local prosecutors, marked the sixth and seventh time that Texas courts have vacated death sentences imposed on intellectually disabled capital defendants since the U.S. Supreme Court in 2017 struck down the unconstitutionally restrictive definition of intellectual disability the state had been using.

On September 23, 2020, the TCCA reformed the death sentence imposed on Salvadoran national Gilmar Guevara (pictured) to a life term in prison with the possibility of parole after 40 years, finding that Guevara had “met his burden to show that he satisfies the diagnostic criteria for intellectual disability.” One week earlier, the court granted relief to Mexican national Juan Lizcano on his intellectual disability claim and resentenced him to life without the possibility of parole.

Guevara was convicted and sentenced to death in Harris County in 2001 for the murder of two store clerks during a botched robbery. His conviction came one year before the Supreme Court declared that the use of the death penalty against individuals with intellectual disability constituted cruel and unusual punishment. In an unpublished opinion in 2007, the TCCA denied Guevara’s intellectual disability claim, applying a set of lay stereotypes that the Supreme Court said in Moore v. Texas “had no grounding in prevailing medical practice” and “creat[ed] an unacceptable risk that persons with intellectual disability will be executed.”

After Moore was decided, the TCCA returned Guevara’s case to Harris County to reconsider his intellectual disability claim. Mental health experts for both sides agreed that he satisfied the criteria for intellectual disability, and the prosecution and defense each submitted pleadings agreeing that he was intellectually disabled. Although the TCCA “declined to adopt” the trial court’s findings of fact, it concluded that Guevera had proven his claim. Guevara was convicted before the Texas legislature eliminated the possibility of parole from a life sentence in 2005, making him eligible to apply for parole in 2041.

“In this case, medical experts on both sides agreed the evidence shows Guevara is intellectually disabled,” Harris County District Attorney Kim Ogg said. “As medical science and criminal justice increasingly intersect, it’s changing the law of the land and how and when prosecutors use the death penalty.”

Lizcano was sentenced to death in 2007 for the fatal shooting of a Dallas police officer. Although his IQ was within the range for establishing intellectual disability and he exhibited deficits in day-to-day functioning consistent with the disability, the Texas courts initially rejected his claim. After Moore, the TCCA returned the case to the Dallas County courts, at which point newly elected reform District Attorney John Creuzot reviewed the evidence and agreed Lizcano could not be executed. The TCCA found that the Dallas court’s determination that Lizcano was intellectually disabled was supported by the record and reformed his death sentence to life without parole.

In addition to Guevara and Lizcano, Bobby Moore, Pedro Sosa, Robert Campbell, James Henderson, and Kenneth Thomas have also been resentenced to life after their intellectual disability claims were reconsidered. Moore was recently released on parole after forty years in prison.

Kristin Houlé, Executive Director of the Texas Coalition to Abolish the Death Penalty, said the local prosecutors’ concurrence in many of the recent intellectual decisions “reflect[s] the changing death penalty landscape in Texas … [and] the tremendous turnover we’ve had with district attorneys in recent years, especially in jurisdictions that have used the death penalty most often.”