IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-77,038
US CARNELL PETETAN, JR., Appellant
v.
THE STATE OF TEXAS
ON REHEARING UPON COURT’S OWN MOTION
FROM CAUSE NO. 2012-2331-C1 IN THE 19TH DISTRICT COURT
McLENNAN COUNTY
N EWELL, J. filed a concurring opinion in which R ICHARDSON
AND W ALKER JJ. joined.
On original submission, Appellant raised multiple grounds claiming,
in essence, that he should be exempted from the death penalty due to his
intellectual disability.1 We addressed his claims even as the United States
Supreme Court evaluated whether the standard that we use in Texas for
1
Appellant specifically asked us to re-work our standard for determ ining intellectual
disability in light of Hall v. Florida, and we declined to do so.
Petetan Concurring – 2
determining intellectual disability–set out in Ex parte Briseno 2 – violates
the Eighth Amendment. Before this appeal was final, the United States
Supreme Court handed down Moore v. Texas.3 Moore clearly invalidates
portions of our Briseno standard–namely the reliance upon non-clinical
“factors” to evaluate adaptive functioning–and calls other aspects of our
standard into question.4 If all Moore had done was simply prohibit the
use of “the Briseno factors” when determining intellectual disability I
would agree to a denial of rehearing. However, Moore appears to go
further than that, as noted in Chief Justice Roberts’ dissent.5 We seem
to have recognized as much when we agreed to briefing on the issue of
intellectual disability, rather than simply granting Moore the habeas relief
2
135 S.W .3d 1 (Tex. Crim . App. 2004).
3
137 S.Ct. 1039 (2017).
4
Id. at 1053 (Roberts, C.J., dissenting)(observing that the United States Suprem e
Court unanim ously agreed that the Briseno factors violated the Eighth Am endm ent); see
also id. at 1049 (m aj. opinion) (noting that our evaluation of IQ scores is irreconcilable with
Hall v. Florida because it allows for factors unique to the individual to narrow the test-
specific standard-error range); see also id. at 1050 (m aj. opinion) (noting that the m edical
com m unity focuses adaptive-functioning inquiry on adaptive deficits rather than adaptive
strengths and that we overem phasized the defendant’s adaptive strengths).
5
Id. at 1059-61 (Roberts, C.J., dissenting) (criticizing the Moore m ajority for calling
into question a reviewing court’s ability to draw reasonable inferences about IQ scores); see
also In re Cathey, 857 F.3d 221, 235 (5th Cir. 2017) (recognizing that the United States
Suprem e Court had invalidated Briseno, but “did not announce what should replace the
Briseno factors”).
Petetan Concurring – 3
he seeks.6 Though it is unusual to grant rehearing on our own motion,
these are unique circumstances. It is more prudent to address these
issues at this juncture given that Appellant specifically asked us to re-
work our standard for determining intellectual disability, Moore now
requires us to do just that, Moore was decided before Appellant’s appeal
became final, and Appellant did not have the benefit of Moore on original
submission.
With these thoughts I concur.
Filed: October 18, 2017
Do Not Publish
6
Ex parte Moore, No. W R-13,374-05 (Tex. Crim . App. June 14, 2017)(not designated
for publication).