Texans

“The DA, who represents just one of Texas’s 254 counties, does not represent the Attorney General’s interest,” the state’s top prosecutor wrote, claiming that the district attorney offered “no analysis” beyond “two conclusory sentences” in her filing a day earlier.

The state’s 17-page brief represents yet another twist in a groundbreaking case that’s already shaken up how Texas determines whether a prisoner is too intellectually disabled to be put to death.

READ MORE: Texas court upholds death sentence for Harris County death row inmate Bobby Moore

Lawyers for Moore, an attorney general spokesperson and the district attorney’s office all did not weigh in on Wednesday’s filing. A day earlier, Harris County District Attorney Kim Ogg offered a short statement pointing to an earlier Supreme Court decision in the case.

“We agree with the Supreme Court that the intellectually disabled should not be executed,” she said.

The convicted killer was one of three men involved in a botched robbery at the Birdsall Super Market, a 1980 slaying in which he fired the shot that killed elderly store clerk James McCarble. That same year, the former carpenter was sentenced to death during his 1980 trial.

For more than three decades, Moore fought his appeals, once coming within hours of execution. Then, in 2017, the Supreme Court handed down a groundbreaking decision, in a 5-3 ruling determining that Texas had been, for years, not properly measuring intellectual disability in cases like Moore’s. The ruling booted Moore’s claims back to a lower court, where prosecutors switched course and asked for a life sentence.

But – even though the district attorney’s office agreed to the more lenient outcome – the Texas Court of Criminal Appeals didn’t, handing down a split decision Moore’s lawyers condemned as an “outlier” and “inconsistent” with the higher court.

“As far as counsel is aware, this Court never has permitted an execution when both the prosecutor and the defendant agree that the defendant is intellectually disabled and ineligible for execution,” defense attorney Cliff Sloan and Pat McCann wrote in their Supreme Court filing. “For good reason.”

READ MORE: Houston murder takes center stage at U.S. Supreme Court

Although the Supreme Court banned states from executing intellectually disabled prisoners more than a decade ago, for years Texas skirted that by relying on an out-dated, nonclinical test to evaluate mental capacity.

Named after plaintiff Jose Briseno, the test used seven questions to determine intellectual disability, as outlined in a 2004 ruling that famously referenced “Of Mice and Men” character Lennie as someone most Texans would agree should be exempt from the death penalty.

But even though he failed every single grade, did not understand the days of the week by age 13, and fell below the standard for being able to live independently as an adult, under the old standard Moore still didn’t qualify as intellectually disabled.

The Court of Criminal Appeals twice decided that despite his apparent deficits, he was still fit to execute. Then last year the Supreme Court reversed the first of those two decisions with its groundbreaking 5-3 ruling.

The high court’s 2017 ruling didn’t just impact Moore’s case, it also ordered Texas to come up with new standards – something other than the Briseno factors – for determining intellectual disability.

The ruling sparked a stream of requests from inmates hoping to get off death row, and two condemned killers won stays this year because of the decision.

But even the Supreme Court’s decision hasn’t been enough to spare Moore – at least not yet. After the high court’s decision last year, prosecutors in November 2017 agreed with the defense that a life sentence was appropriate.

And still, the Texas Court of Criminal Appeals said no. Even though the appeals court came up with a new, clinical standard for measuring intellectual disability, they still found that Moore didn’t meet it.

So in October, Moore’s lawyers filed another appeal in the Supreme Court. On Tuesday, the district attorney’s office agreed.

“The respondent parts company with the TCCA in its determination that the applicant is not intellectually disabled,” the district attorney’s office wrote. Citing the Supreme Court’s earlier decision, the prosecutors laid out some of the indicators of Moore’s disability, and concluded by asking the justices to reverse the Texas appeals court’s decision.

In its unusual response a day later, the attorney general asked to replace the district attorney on the case and accused the Texas Court of Criminal Appeals of taking on the role of the legislature when it adopted updated, clinical standards for determining mental capacity earlier this year.

The state also dinged the county prosecutors for changing their stance on the case.

“For one thing, the DA’s concession was an abrupt reversal of her office’s longstanding position that the same evidentiary record demonstrated that petitioner is not intellectually disabled,” the state argued.

And, the attorney general wrote, the court requires arguments from two sides in death penalty cases. But when prosecutors agree with the defense, they’re not really offering true opposition, the state said.

“Petitioner’s arguments outlined above should be fully addressed by a true brief in opposition before the Court considers the extraordinary remedy of summary reversal,” the attorney general wrote. “If allowed to intervene, the Attorney General will perform that important function for the Court.”

Now that Shake Shack has opened two Houston outposts, with a third to come on Westheimer in Montrose, I thought it was time to return and reassess. Here’s how my visit to the month-old location in Rice Village went:

PRICE: $5.49 for the basic single-patty Shack Burger with cheese; $2.99 for basic waffle fries: $4.59 for a special-edition frozen concrete with mint-chocolate marshmallow add-ins from local pastry chef Rebecca Masson of Fluff Bake Bar. Triple-filtered water was free from a cooler on the condiment bar. Meal total with tax was $14.53.

ORDERING: Self-serve. Line up inside the railings that organize the queue, which is liable to be considerable at prime times. Consult the wall menu, and order from a staffer, who will hand you a buzzer. Find a table indoors or outside on the terrace, or a perch at one of the high community tables. Visit the condiment station to acquire napkins, plastic utensils, straws and the like. Fetch your food from up front when your buzzer goes off. (In my case, just before the lunch rush started in earnest, that took about 5 minutes.)

ARCHITECTURE: Salad stuff on top. On a toasted potato bun goes a ground beef patty that’s about a third of an inch thick; a slice of American cheese; twin slices of ripe Roma tomato; and a bright green frill of leaf lettuce. A swipe of pinkish, mayo-based “Shack Sauce” goes on the top bun. Snugged in its white paper wrapper so that the red, green and gold elements all peek out enticingly, with the cheese melting in rivulets, it’s an exceptionally photogenic package.

More Information

Shake Shack has two standalone locations in the Galleria (5015 Westheimer) and Rice Village (6205 Kirby). There’s also a kiosk at Minute Maid Park; shakeshack.com .

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QUALITY: The best thing about the cheeseburger was the good quality, texture and cooking of the ground Angus beef patty. The grind was loose enough so that the meat didn’t compact on the grill, and the beef flavor was full and satisfying. The interior of the thin patty remained nicely rose-pink beneath its dark sear, so that the overall burger effect was succulent rather than dry and deprivational.

The cheese had a good, sticky melt to it; I’ve always felt the charms of American cheese on a burger were more textural than flavor-based, and the Shake Shack burger bore this out. I appreciated the ripeness and give of the tomato slices, but the leaf lettuce, for all its visual appeal, got pretty much lost in context.

What I missed, overall, was the degree of condiment oomph that we Texans prize in our burgers. The Shack Sauce is pretty bland, I am sorry to say. No mustard, no pickles, no onion are part of the standard Shake Shack package. You take these burgers as they come, no customization offered. You can add mustard from the condiment station, if you like. And I smiled to see a whole fleet of Cajun hot sauce bottles at the ready — next time I go, I’ll add a few jolts to perk things up.

Still, I realized as I ate that the lack of condiment action allowed the beefiness of the burger experience to shine through, even in a single-patty situation. I have a friend who swears one must always order a double-patty burger at Shake Shack, lest the bun-to-meat ratio skew too far breadward. I didn’t find that to be true. The yellow potato buns squished down nicely — but not too far — as I ate.

OOZE RATING: Fair, mostly thanks to melted cheese and mayo sauce. The patty itself was juicy but not at all drippy.

GRADE: Solid B-plus. I definitely liked this burger more than my Madison Square Park original. More than a decade of honing the concept may have had a salutary effect on the product, although it’s hard to say from just two samples. The main difference was that my latest sample actually left me wanting more. The original did not.

BONUS POINTS: The physical setup is handsome, with its airy space and grid of woods and metals. The special Masson concrete was fun stuff, the frozen chocolate custard looped with soft marshmallow threads and big hunks of mint chocolate.

MINUS POINTS: Staffers on the line seemed a bit brusque and impervious to eye contact. Although they do bark “Welcome to Shake Shack!” quite a bit.

I’m still not a fan of frozen fries, but much care (and scientific manipulation, one supposes) has gone into creating a preternaturally long-lasting crunch to the rippled exteriors of these particular specimens. They were good for what they were. Rather famously, the Shake Shack brain trust once tried to swap out better fries for the frozen crinkle-cuts and were faced by a customer rebellion. So there ya go.