The Texas Court of Criminal Appeals has upheld the death sentence of Bobby Moore in a case over the definition of intellectual disability — despite pleas from both Moore and the prosecution to change his sentence to life in prison.


More than a year ago, the U.S. Supreme Court knocked down Texas’ method of determining intellectual disability for death-sentenced inmates in Moore’s case, ruling it used outdated medical standards and rules invented by elected judges without any authority. In a 4-3 ruling on Wednesday, the Texas Court of Criminal Appeals accepted the use of current medical standards to determine intellectual disability but said Moore still fails to qualify — making him eligible for execution.


Moore was sentenced to death nearly 38 years ago, three months after he walked into a Houston supermarket with two other men and fatally shot James McCarble, the 73-year-old clerk behind the counter, according to court documents.


The recent fight over his mental deficiencies began after a lower Texas court ruled in 2014 that Moore was intellectually disabled. The Court of Criminal Appeals overturned that ruling using its own test, which the Supreme Court later invalidated, sending the case back to Texas.


In a new evaluation, the majority of the Court of Criminal Appeals ruled that Moore showed too many adaptive strengths to qualify as intellectually disabled, such as learning to read and write in prison and buying items from commissary — the prison’s store. The Supreme Court had warned against using strengths gained in a controlled environment like prison, but the Texas court said some of Moore’s deficits were due to the “lack of opportunity to learn,” according to the opinion written by Presiding Judge Sharon Keller.


In a 67-page dissent, death-penalty critic Judge Elsa Alcala, joined by Judges Bert Richardson and Scott Walker, said Moore was intellectually disabled, and therefore ineligible for execution. She cited the decision by the lower Texas court that held a live hearing on the issue, Harris County District Attorney Kim Ogg’s request for a change of sentence based on Moore’s deficiencies, and many observations in the Supreme Court ruling that appeared to agree Moore was disabled.


“I’m in good company in reaching this conclusion,” Alcala wrote. “There is only one outlier in this group that concludes that applicant is ineligible for execution due to his intellectual disability, but unfortunately for applicant, at this juncture, it is the only one that matters.”


This article originally appeared in The Texas Tribune at https://www.texastribune.org/2018/06/06/texas-court-criminal-appeals-death-sentence-bobby-moore/. The Texas Tribune is a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.