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 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 at that time 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 was 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). Consequently, we ordered the trial court to determine if applicant wished to waive his guilt phase claims. See Ex parte Lane, Nos. WR-67,161-01 & WR-67,161-02 (Tex. Crim. App. August 1, 2007)(not designated for publication). As the trial court determined applicant did not wish to waive those claims, the trial court entered findings of fact and conclusions of law pertaining to the initial writ. No evidentiary hearing was held.
In his initial writ, No. WR-67,161-01, applicant presents fourteen allegations challenging the validity of his conviction and resulting sentence. This Court has reviewed the record with respect to the allegations made by applicant. We adopt the trial court's findings of fact and conclusions of law, except for the portions of conclusions #30 and #31 that pertain to the harmlessness of the corroboration of the co-defendant's statement by applicant's confession. We also do not adopt findings and conclusions #38 to #41 that hold applicant was not denied counsel by the failure to appoint counsel until he was extradited to Texas from Kansas. While the trial court's holdings are valid for the time frame of this case (1991-93), the outcome might be different today under the Supreme Court's holding in Rothgery v. Gillespie County, Texas, ___ U.S. ___, 128 S. Ct. 2578, 171 L. Ed. 2d 366 (2008).
Based upon the trial court's findings and conclusions and our own review, we deny relief on applicant's allegations pertaining to the guilt or innocence phase of his trial. We dismiss as moot applicant's allegations pertaining to the punishment phase of trial.
Applicant's subsequent writ, No. WR-67,161-02, is rendered moot by the Governor's commutation of applicant's death sentence and is, therefore, dismissed.
IT IS SO ORDERED THIS THE 4TH DAY OF FEBRUARY, 2009.
Do Not Publish