IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. CR-93-454-A AND CR-93-454-B IN THE 22ND DISTRICT COURT
HAYS COUNTY
O R D E R
This is a post conviction application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure article 11.071.
In February 1994, a jury convicted applicant of the offense of a capital murder committed in March 1980. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure article 37.0711, and the trial court, accordingly, set punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Lane v. State, 933 S.W.2d 504 (Tex. Crim. App. 1996).
On March 5, 1998, applicant filed an initial Article 11.071 application for writ of habeas corpus with the convicting court in which he raised fourteen allegations including a claim that he was mentally retarded and could not constitutionally be executed. The trial court never made findings of fact or conclusions of law regarding the allegations raised in the initial application.
In June 2002, the United States Supreme Court held in Atkins v. Virginia, 536 U.S. 304 (2002), that it violated the Eighth Amendment to execute a person who was mentally retarded. In August 2002, applicant filed his first subsequent application in the trial court again asserting that he is mentally retarded and that his execution will violate the Eighth Amendment. The subsequent application was not forwarded to this Court as required by Article 11.071 § 5(b) for a determination of whether the application met the dictates of Article 11.071 § 5(a). Instead, in November 2006, the trial court reviewed the merits of the allegation and the agreement of the parties and entered findings and conclusions recommending that applicant's sentence be commuted to one of life in prison.
Before the record on the subsequent application was forwarded to this Court, the matter was submitted to the Governor, who, on March 9, 2007, commuted applicant's sentence to one of life in prison. Thereafter, applicant submitted a "motion to non-suit" both cases because he had "received the relief he requested in both his original writ . . . and his subsequent application." On June 21, 2007, the trial court signed an order granting applicant's "motion to non-suit" in both cases because "both . . . are moot."
But applicant's conclusion that he received the relief he requested is a misstatement of fact because he received no relief regarding the allegations pertaining to the guilt portion of his trial. Plus, the court's conclusion that both applications were rendered moot by the Governor's commutation of his sentence is a misstatement of the law. While the Governor's commutation of applicant's sentence rendered all claims pertaining to the punishment phase moot, this Court still retained jurisdiction to review the claims raised in the initial application that pertained to guilt phase issues. Ex parte Jackson, 187 S.W.3d 416 (Tex. Crim. App. 2005).
Because of these misstatements, the record is unclear whether applicant, by way of his "motion to non-suit," intended to actively waive his claims pertaining to the guilt phase of trial or simply misunderstood habeas procedure and mistakenly thought that those claims had been rendered moot. Therefore, the trial court is ordered to clarify - by affidavit, hearing, or some other means - whether applicant knowingly and voluntarily intended to waive his claims pertaining to the guilt phase or whether he still wants to pursue those claims as allowed by law. In light of the finding that applicant is mentally retarded, the court shall also determine whether applicant is able to knowingly and voluntarily waive the claims at issue.
The clarification, and the trial court's findings and conclusions regarding that clarification are to be returned to this Court within sixty (60) days of the date of this order. If the court determines that applicant did not intend to abandon his claims regarding the guilt phase of his trial, the court shall resolve those issues pursuant to Article 11.071 and return the application to this Court within 120 days of the date of this order.
IT IS SO ORDERED THIS THE 1ST DAY OF AUGUST, 2007.
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