155. Point of error one is overruled. B. Pretrial Determination of Mental Retardation In point of error two, appellant claims that he was entitled to a pretrial determination of mental retardation by the judge or a jury separate from that determining guilt. As discussed above, the Texas Legislature has not established a statutory scheme for the presentation and determination of an issue of mental retardation in a capital murder trial. However, in the meantime, this Court has formulated temporary judicial guidelines in addressing Atkins claims. Briseno, 135 S.W.3d at 5. The guidelines formulated in Briseno do not address when the determination of mental retardation is to be made. However, a jury determination of mental retardation is not required. See Schriro, 546 U.S. at 7, 126 S.Ct. 7 (<HOLDING>); see also Briseno, 135 S.W.3d at 9 (holding
holding that the sixth circuit erred in finding that the state courts jury instructions were contrary to clearly established federal law holding that the ninth circuit erred by failing to defer to the bias reasonable interpretation of the ina holding that the district court erred when it relied on neuschafer for the proposition that dismissal of mixed habeas petitions is not the rule in the ninth circuit  holding that the ninth circuit erred because the state appellate courts conclusion that one incorrect statement in jury instructions did not render the instructions likely to mislead the jury was not unreasonable holding that the ninth circuit erred in commanding arizona courts to conduct a jury trial to resolve mentalretardation claim