Opinion
WR-60 937-06 WR-60 937-07
10-20-2021
EX PARTE U.S. CARNELL PETETAN JR., Applicant
Do Not Publish
ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS IN CAUSE NO. 2012-2331-C1A IN THE 19TH JUDICIAL DISTRICT COURT McLENNAN COUNTY
Yeary, J., filed an opinion dissenting in part and concurring in part.
ORDER
PER CURIAM.
In April 2014, a jury found Applicant guilty of the offense of capital murder and the trial court sentenced him to death. See Tex. Penal Code § 19.03(a); Tex. Code Crim. Proc. art. 37.071. On June 6, 2016, the State filed in this Court its brief on Applicant's direct appeal. Pursuant to Article 11.071 §§ 4(a) and (b), Applicant's initial application for a writ of habeas corpus was due to be filed in the trial court on or before October 19, 2016, assuming a motion for extension was timely filed and granted. See Art. 11.071 §§ 4(a) and (b).
Unless otherwise indicated, all references in this order to Articles refer to the Texas Code of Criminal Procedure.
On January 13, 2021, because it had been more than four years since the application was due in the trial court, we ordered the trial court to resolve any remaining issues in the case within 60 days from the date of the order. We also ordered the clerk to thereafter immediately transmit the complete writ record to this Court. This made the case due in this Court on or before March 15, 2021.
Citing to the fact that he had just assumed the bench, the trial judge requested an extension of 90 days. We granted the judge's request, making the case due in this Court on or before June 14, 2021. That judge subsequently recused himself and the newly retired judge, who had been the trial judge in this case, was appointed to hear the application.
On May 15, 2021, this Court reversed Applicant's death sentence on direct appeal and remanded the case for a new punishment trial. See Petetan v. State, __S.W.3d__, No. AP-77, 038 (Tex. Crim. App. del. May 12, 2021) (op. on reh'g). Shortly thereafter, recognizing that there remained some guilt issues to resolve, the newly appointed judge requested an extension in the case of 120 days or to October 12, 2021, to resolve those issues. We granted the motion.
We recognize that this renders moot any claims raised on habeas affecting the punishment phase of trial. However, the trial judge acknowledged that there are still guilt phase claims that must be resolved.
In a new request for an extension, the trial judge notes that counsel has expressed concerns that the reversal of Applicant's death sentence deprives the trial court of the authority to proceed. The trial judge also notes that Applicant informed him that a similarly situated case is currently pending before the Court of Criminal Appeals. See Ex parte Brownlow, No. WR-85, 286-01. Under the circumstances, the trial judge now asks for an extension of time to January 15, 2022, to allow this Court to rule in the Brownlow case and to allow the trial court to finalize the writ record in Applicant's case and return it to this Court. We will grant an extension to December 31, 2021. The case is due back in this Court on or before that date.
This Court resolved the Brownlow case contrary to Applicant's position. See Ex parte Brownlow, S.W.3d, No. WR-85, 286-01 (Tex. Crim. App. Sept. 15, 2021).
Any further extensions of time shall be requested by the trial judge, or on the judge's behalf, and obtained from this Court. Any such request shall also be accompanied by a detailed statement showing what efforts have been undertaken to resolve the issues raised and good cause for why an additional extension is warranted.
It has also come to our attention that Applicant has filed a document titled an "Amended 11.07 Application." According to Applicant, this document is intended to add additional claims to the writ application already pending in the trial court, which, Applicant asserts, the trial court has "converted" to an Article 11.07 writ application.
The habeas application currently pending in the trial court was properly filed pursuant to Article 11.071. Our reversal of Applicant's death sentence on direct appeal does not change its characterization. And per the language of Article 11.071, Applicant's attempted amendment is far too late. Additionally, because Applicant is no longer under a sentence of death, the new filing is not properly considered as a subsequent Article 11.071 writ application.
Finally, the new document does not qualify as an Article 11.07 writ application. Article 11.07 can only be used to attack final felony convictions. See Art. 11.07 § 3. Because Applicant is still awaiting final sentencing (and possibly an appeal of that sentencing), his conviction is not final, and Article 11.07 does not apply. Thus, we conclude that the document is not properly filed, and we dismiss it without reviewing the merits of the claims raised.
IT IS SO ORDERED.
DISSENTING AND CONCURRING OPINION
Yeary, J.
The Court's order today grants the convicting court an extension of time to complete its fact findings and recommendations for this Court relating to Applicant's initial postconviction application for writ of habeas corpus, which was initially filed in a case in which the death penalty had been imposed, under Article 11.071 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. art. 11.071, § 1. The problem is, this Court vacated Applicant's death sentence on direct appeal, on the basis of punishment-phase error, and it remanded the cause to the trial court for another punishment hearing. Petetan v. State, 622 S.W.3d 321 (Tex. Crim. App. 2021). For the reasons I have explained in my dissenting opinion in Ex parte Brownlow, ___S.W.3d ___, No. WR-85, 286-01, 2021 WL 4197415, at *2 (Tex. Crim. App. del. Sept. 15, 2021) (Yeary, J., dissenting), I believe the Court should dismiss this application on the basis that it no longer has authority to proceed, since there is no longer any "judgment imposing a penalty of death" that exists in this case. See Tex. Code Crim. Proc. art. 11.071, § 1 ("[T]his article establishes the procedures for an application for a writ of habeas corpus in which the applicant seeks relief from a judgment imposing a penalty of death.") (emphasis added). Indeed, we have no way of knowing, at this point in time, whether Applicant will once again be sentenced to death. Because the Court does not simply dismiss Cause Number WR-60, 937-06, I respectfully dissent to the Court's action in that case.
On the other hand, I agree with the Court's order to the extent that it dismisses Applicant's purported Article 11.07 post-conviction application for writ of habeas corpus. Any writ brought under the auspices of Article 11.07 is premature since, until such time as Applicant is once again sentenced for his crime, his conviction is not final for purposes of our acquiring authority to entertain a non-capital felony writ application under that provision. See Brownlow, ___S.W.3d at ___, 2021 WL 4197415, at *2; Tex. Code Crim. Proc. art. 11.07, § 1 ("This article establishes the procedures for an application for writ of habeas corpus in which the applicant seeks relief from a felony judgment imposing a sentence other than death.") (emphasis added). Because the Court appropriately dismisses Cause Number WR-60, 937-07, I concur with the Court's action in that case.
As far as I am concerned, all felony post-conviction habeas corpus proceedings in this case should halt and be dismissed, at least until such time as Applicant has obtained a new sentence pursuant to our remand on direct appeal and then chooses, if he does, to file a new application under the appropriate Code of Criminal Procedure Chapter 11 article. See id. at *4 ("I would grant Applicant's motion to dismiss his Article 11.071 writ application without prejudice to re-file it . . . at a later date as may become appropriate; and without prejudice to filing an Article 11.071 writ application, should that eventually prove to be the appropriate procedure after all."). To do otherwise, as the Court does today, unnecessarily complicates the previously obvious distinctions between death-penalty versus non-death-penalty capital applications for the writ of habeas corpus.
Our Legislature has provided clear and distinct procedures for felony post-conviction habeas applications, which proceed along markedly different paths depending entirely on whether a sentence of death or some other sentence has been imposed. At present, of course, Applicant's case is in a posture in which no sentence at all is imposed. It is possible that he might either once again be sentenced to death or that a life sentence will be imposed. Once his new sentence is imposed, the appropriate habeas path will be obvious. But until that happens, we have no authority to entertain his previous filings. Because the Court refuses to dismiss both of Applicant's current writ applications and wait-as the clear legislative directives require-to see first whether Applicant is sentenced to death or life, I cannot join its order.