Opinion
WR-60,937-06
09-27-2023
EX PARTE U.S. CARNELL PETETAN JR., Applicant
Do not publish
ON APPLICATION FOR WRIT OF HABEAS CORPUS CAUSE NO. 2012-2331-C1A IN THE 19th DISTRICT COURT McLENNAN COUNTY
Keller, P.J., dissented.
ORDER
PER CURIAM
This is an application for a writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071.
In April 2014, a jury convicted Applicant for the 2012 killing of Kimberly Petetan during the course of committing or attempting to commit the offenses of burglary, kidnapping, and/or retaliation. Tex. Penal Code § 19.03(a). The jury answered the special issues submitted pursuant to Article 37.071 and the trial court, accordingly, set punishment at death. This Court affirmed Applicant's conviction and sentence on direct appeal. Petetan v. State, No. AP-77,038 (Tex. Crim. App. Mar. 8, 2017)(not designated for publication).
In October 2016, Applicant filed the instant application for habeas relief. In 2021, this Court reversed Applicant's death sentence and remanded the case for a new punishment trial. See Petetan v. State, 622 S.W.3d 321 (Tex. Crim. App. 2021)(op. on reh'g). We then issued an order recognizing that the reversal of Applicant's death sentence rendered moot any claims raised on habeas affecting the punishment phase of trial. See Ex parte Petetan, Nos. WR-60,937-06 & -07 (Tex. Crim. App. Oct. 20, 2021)(not designated for publication).
Applicant's habeas application presents twelve allegations in which he challenges the validity of his conviction and resulting sentence. The trial court did not hold an evidentiary hearing but produced findings of fact and conclusions of law recommending that the relief sought be denied. The following claims pertain only to the punishment phase and are therefore moot: Applicant is ineligible for execution based on his intellectual disability (Claim One); the arbitrary procedures under which Applicant was determined to be not intellectually disabled violated the Eighth and Fourteenth Amendment prohibitions against arbitrary death sentences (Claim Seven); Applicant is ineligible for the death penalty due to his serious mental illness (Claim Eight); Applicant's death sentence should be vacated because the punishment phase jury instruction restricted the evidence that the jury could determine was mitigating (Claim Nine); Applicant's death sentence is unconstitutional because it was assigned based on Texas's arbitrary system of administering the death penalty (Claim Ten); Applicant's constitutional rights were violated when the trial court failed to instruct the jury that a vote by one juror would result in a life sentence (Claim Eleven); and Applicant's death sentence was arbitrarily and capriciously assigned based on the jury's answer to the unconstitutionally vague first special issue (Claim Twelve).
Applicant's remaining claims are without merit. In Claim Two, Applicant alleges that trial counsel were ineffective for failing to: investigate and present evidence of his incompetency to stand trial; object to the State's "improper" comments and arguments at the competency hearing; object to "burden shifting" comments at voir dire; impeach eyewitnesses with inconsistent statements; cross-examine the State's firearms expert; reassert impeachment evidence at closing argument; object to the jury charge; object to the use of visible restraints; and object to numerous instances of improper questioning and inadmissable evidence. Applicant also argues that trial counsel performed deficiently based on the totality of the representation. These allegations are without merit because Applicant has not met his burden to demonstrate both deficient performance and prejudice under Strickland v. Washington, 466 U.S. 668 (1984).
The majority of Applicant's remaining claims pertain to the guilt phase of trial, with a few exceptions. In Claim Two, Applicant alleges in part that counsel were ineffective because they failed to: investigate his life history, intellectual disability, and psychiatric history; impeach witness Frederick Nico; explain the relevance of Applicant's mother's mental illness; and object to the State's closing argument. In Claims Three and Four, Applicant asserts in part that the State used false testimony from Nico and suppressed Nico's prior criminal history. In Claim Five, Applicant complains in part that a juror quoted the Bible during deliberations. These portions of Claims Two through Five are moot because they pertain only to the punishment phase of trial.
In Claims Three and Four, Applicant asserts that the State used false testimony and withheld evidence to secure his conviction. Ex parte Ghahremani, 332 S.W.3d 470, 477-78 (Tex. Crim. App. 2011); Ex parte Chabot, 300 S.W.3d 768, 770 (Tex. Crim. App. 2009); Brady v. Maryland, 373 U.S. 83 (1963). Applicant's false testimony claim fails because he has not proven that the complained-of evidence was both false and material. Ex parte Chaney, 563 S.W.3d 239, 263 (Tex. Crim. App. 2018). His Brady claim-that the State withheld the prior criminal history of witness Adrian Miller-also fails because he has not met his burden to show that (1) the State failed to disclose evidence; (2) the withheld evidence was favorable; and (3) the evidence was material. Strickler v. Greene, 527 U.S. 263, 281-82 (1999); Diamond v. State, 613 S.W.3d 536, 545 (Tex. Crim. App. 2020).
We note that we are not required to review the merits of these habeas claims because it appears that Applicant could have raised them on direct appeal, but failed to do so. See Ex parte Nelson, 137 S.W.3d 666, 667 (Tex. Crim. App. 2004), citing Ex parte Goodman, 816 S.W.2d 383, 385 (Tex. Crim. App. 1991).
In Claim Five, Applicant alleges that the jury's exposure to "multiple extraneous influences" violated his right to a fair trial. First, Applicant complains that the jury saw his shackles during trial. We will not review the merits of this allegation because Applicant failed to raise it on direct appeal. See Nelson, 137 S.W.3d at 667; see also Ex parte Chavez, 560 S.W.3d 191, 200 (Tex. Crim. App. 2018). Second, Applicant complains that the jurors heard members of the community conversing about the case during the jurors' lunch breaks. Assuming that Applicant could not have made this argument on appeal, it is without merit because Applicant has not shown that what the jurors heard affected their deliberations and thereby the verdict. Balderas v. State, 517 S.W.3d 756, 782 (Tex. Crim. App. 2016).
In Claim Six, Applicant asserts that appellate counsel was ineffective in failing to argue that the trial court erroneously excluded a witness's testimony about what caused her to call 9-1-1. This claim has no merit because Applicant has not met his burden to show that there is a reasonable probability that, but for counsel's failure to raise this issue, he would have prevailed on appeal. Ex parte Flores, 387 S.W.3d 626, 639 (Tex. Crim. App. 2012).
We dismiss the claims raising punishment-only issues. And, based upon the trial court's findings and conclusions and our own review, we deny relief on the remaining claims.
IT IS SO ORDERED THIS THE 27th DAY OF SEPTEMBER, 2023.
Yeary, J., filed a dissenting opinion.
In May of 2021, this Court vacated Applicant's death sentence and remanded the case for a new punishment hearing in light of Moore v. Texas, 581 U.S. 1 (2017) (holding that Texas's legal standard for determining intellectual disability violated the Eighth Amendment prohibition against the execution of intellectually disabled people). Petetan v. State, 622 S.W.3d 321 (Tex. Crim. App. 2021) (op. on reh'g). Given that he is no longer facing a sentence of death, Applicant sought to convert his original writ application, filed under Article 11.071 of the Texas Code of Criminal Procedure, into an Article 11.07 application. See Tex. Code Crim. Proc. art. 11.071 ("Procedure in death penalty case"); id. art. 11.07 ("Procedure after conviction without death penalty"). This Court denied Applicant's motion. See Ex parte Petetan, Nos. WR-60,937-06, -07 (Tex. Crim. App. Oct. 20, 2021) (not designated for publication); id. 632 S.W.3d 538 (Tex. Crim. App. 2021) (Yeary, J., dissenting in part and concurring in part).
Today, the Court disposes of Applicant's original Article 11.071 postconviction application by dismissing seven of his twelve claims as moot and by denying relief on the remainder of his claims as meritless. While it is accurate that Applicant's claims relating only to the punishment phase of his original trial are moot, I believe his application should be dismissed in its entirety. Therefore, to the extent the Court reaches the merits of Applicant's claims, I dissent.
Because Applicant's death sentence has been vacated and he has not yet been resentenced, there is no "judgment imposing a penalty of death" against him. Tex. Code Crim. Proc. art. 11.071 § 1 (emphasis added); Petetan, 632 S.W.3d at 538. Consequently, this Court no longer has authority to proceed on this application. See Ex parte Dixon, No. WR-56,822-02 *4 (Tex. Crim. App. June 21, 2023) (Yeary, J., dissenting) ("this Court in the present case . . . lacks authority to grant Applicant relief pursuant to Article 11.071 because he . . . no longer has a judgment imposing a penalty of death."). The proper remedy is to dismiss this application. On resentencing, Applicant would then be free to file a new application-whether under Article 11.07 or Article 11.071, depending on the punishment assessed against him.
The record indicates that Applicant is set for a resentencing hearing in December of 2023.