Opinion
NO. WR-63,926-03
06-06-2018
EX PARTE GILMAR ALEXANDER GUEVARA, Applicant
ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE NO. 847121-C IN THE 180TH JUDICIAL DISTRICT COURT HARRIS COUNTY Per curiam. ORDER
This is a subsequent application for a writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071.
All references to articles herein refer to the Texas Code of Criminal Procedure.
In May 2001, applicant was convicted of capital murder and sentenced to death. See TEX. PENAL CODE ANN. § 19.03(a); Art. 37.071 § 2. We affirmed his conviction and sentence on direct appeal. Guevara v. State, 97 S.W.3d 579, 580 (Tex. Crim. App. 2003).
In December 2002, applicant filed in the trial court his initial application for a writ of habeas corpus challenging the merits of his conviction and resulting sentence. The judge entered findings of fact and conclusions of law recommending that relief be denied. In January 2006, applicant filed his first subsequent writ application. In this application, applicant raised the claim that his execution would violate Atkins v. Virginia, 536 U.S. 304, 321 (2002), because he "was and is a person with mental retardation, as this Court has now interpreted that status . . . by its opinion in Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004)." Applicant supported his "Atkins claim" with the report of a clinical neuropsychologist who administered a Spanish-language IQ test and concluded that applicant is intellectually disabled.
In 2007, this Court issued an order denying relief on applicant's initial writ application and dismissing applicant's first subsequent application as an abuse of the writ. Ex parte Guevara, WR-63,926-01 & WR-63,926-02 (Tex. Crim. App. 2007) (not designated for publication). In its order, this Court cited Ex parte Blue, in which the Court followed the precedent set in Briseno to evaluate a claim of intellectual disability. Ex parte Blue, 230 S.W.3d 151, 163-66 (Tex. Crim. App. 2007).
Recently, in Moore v. Texas, 137 S. Ct. 1039 (2017), the United States Supreme Court rejected the use of the Briseno factors to analyze adaptive deficits because they creat[e] an unacceptable risk that persons with intellectual disability will be executed." Id. at 1051. The Supreme Court held that this Court improperly "fastened its intellectual-disability determination to 'the AAMR's 1992 definition of intellectual disability that [it] adopted in Briseno for Atkins claims presented in Texas death-penalty cases.'" Id. at 1053.
See American Association on Mental Retardation (AAMR), Mental Retardation: Definition, Classification, and Systems of Supports (9th ed. 1992). --------
Applicant filed the instant subsequent (-03) writ application with the District Clerk in March 2018. He alleges in this subsequent application that the Supreme Court's Moore decision constitutes a new legal basis for relief that was not available when he originally raised his Atkins claim. See Art. 11.071 §5(a)(1). He contends that he is entitled to a review of his A tkins claim on the merits and a grant of relief.
We find that, in light of Moore, applicant has satisfied the requirements of Article 11.071 § 5(a)(1) with regard to his first allegation in the instant subsequent writ application. To the extent that applicant raises other allegations in this application, they do not satisfy Article 11.071 § 5.
In order for this Court to determine whether applicant is intellectually disabled and exempt from the death penalty under Atkins, further fact-finding is necessary. Therefore, we remand the application to the habeas court for a live hearing to develop evidence, enter findings of fact and conclusions of law, and make a new recommendation to this Court on the issue of intellectual disability. The habeas court may receive evidence from mental health experts and any witnesses whose evidence the court determines is germane to the question of intellectual disability. The court should consider all of the evidence in light of Moore, 137 S. Ct. 1039, and should not consider the Briseno factors.
IT IS SO ORDERED THIS THE 6TH DAY OF JUNE, 2018. Do not publish