A jury of seven men and five women in the Dameon Jamarc Mosley capital murder trial has to make a decision: the death penalty or life in prison.

Based on testimony the past two days, the decision could come down to determining if Mosley is intellectually disabled.

Mosley was convicted of capital murder last week in the shooting death of Billy Stacks, 62, of Tyler, a clerk at the Conoco gas station at 3319 NNE Loop 323. Stacks was shot several times in the head and shoulder when the convenience store was robbed in the early hours of Jan. 28, 2017.

Two other suspects, Lamarcus Hannah, 35, and Kedarias Oliver, 26, also face a capital murder charge in the case and have not had their trials yet.

On Tuesday, both the state and defense rested after going over evidence regarding Mosley’s intellectual ability.

During a pretrial hearing in October, the “intellectual disability” issue first came up. Judge Christi Kennedy of 114th District Court denied the defense’s request for a separate jury, saying such an action to determine intellectual disability is not authorized under the law. She said the question of intellectual disability would be within the charge during the punishment phase against Mosley if he were found guilty.

The U.S. Supreme Court has ruled on intellectual disabilities and the death penalty, the defense said in October.

The court has ruled twice that those with an intellectual disability cannot be assessed the death penalty. In the ruling on Moore v. Texas, a majority of the court justices said Bobby Moore was intellectually disabled medically and could not be executed, according to The Texas Tribune.

Intellectual disability also came up during the Gustavo Zavala-Garcia capital murder case in Smith County. He was declared intellectually disabled and pleaded guilty to killing 10-year-old Kayla Gomez-Orozco in Bullard. Because of the declaration of intellectual disability, he was sentenced to life in prison without parole, not death.

Dr. Timothy Proctor, a psychologist retained by the prosecution, testified that based on the pattern of scoring, Mosley is not intellectually disabled.

Proctor made this determination using past testing that showed Mosley’s IQ range between 70 and 80, which is considered just above intellectual disability. Testing was completed in 1999, 2004, 2009, 2018 and 2019. An IQ of 70 or below begins to be called sub-average, which is one of the requirements of intellectual disability.

Proctor testified that similar IQ results showed Mosley to be in the borderline area of intellect.

The other two requirements for intellectual disability are significant adaptive deficits and showing the first two requirements before age 18, he testified.

Proctor and Dr. Christi Compton, who testified Monday for the defense, both administered tests of Mosley’s intellectual ability. Compton gave a 74 IQ, while Proctor gave a 78 IQ. Proctor said his test method was comprehensive and Compton’s test method is not common practice, in his opinion.

Past intellect tests also showed Mosley to be borderline, he said.

Based on his testing, Proctor testified that Mosley does not have significant adaptive deficits associated with intellectual disability, but he does have some deficits in areas. These deficits are determined from childhood test records and speaking to a family member.

Deficits are categorized as social, conceptual and practical. It’s not just an IQ score, but how the person functions and gets around in the world, Proctor said.

Proctor said he was concerned with speaking to Mosley’s mother, Linda Smith, about his childhood because her answers seemed to change and she wasn’t often around during his childhood.

Proctor told the defense a 69 IQ and below is considered extremely low. He agreed that Smith might have trust issues because of her traumatic past and addiction issues.

Proctor also agreed with a school psychologist’s testimony on Monday that Mosley’s childhood testing showed some adaptive deficits.

A medical doctor in psychiatry who reviewed Mosley’s radiology reports told the jury an old injury of broken bones in his hand was not noted in the reports.

Smith testified Monday that she broke Mosley’s hand with a skillet at age 14 or 15.

The doctor testified not all old fractures show up on X-rays. He said what someone thinks is a break could end up being a lesser injury.

Shannon Coleman, a Smith County Adult Probation officer, testified about a presentence investigation that took place ahead of Mosley’s 2015 probation.

According to the records, Mosley said he had a pleasant childhood and described himself as a well-mannered person who knows right from wrong, Coleman testified.

Coleman told the defense that some people might not tell the accurate truth of their family background.

Steven Bryant, regional director for Texas Department of Criminal Justice in the Huntsville region, testified about the levels of security for inmates in a state prison.

He explained the prison security levels as G1 (trustees), G3 (life without parole inmates) and G5 (inmates under restrictive housing regulations).

Byrant testified G3 level inmates are able to get recreational time while in prison and they’re not placed in a restrictive setting within the jail typically.

The jury will hear instructions and closing arguments at 9:30 a.m. today.

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