Opinion
NO. WR-70,152-03
09-11-2019
EX PARTE GERONIMO GUTIERREZ, Applicant
ON APPLICATION FOR WRIT OF HABEAS CORPUS CAUSE NO. 2001-CR-1577 IN THE 227TH JUDICIAL DISTRICT COURT BEXAR COUNTY Per curiam. YEARY, J., not participating. 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, § 5.
Unless otherwise indicated, all references to Articles are to the Texas Code of Criminal Procedure. --------
Applicant was convicted in April 2002 of capital murder. The evidence showed that Applicant shot and killed Rick Marin during the course of committing or attempting to commit robbery in May 1999. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071, and the trial court, accordingly, set punishment at death. This Court affirmed Applicant's conviction and sentence on direct appeal. Gutierrez v. State, No. AP-74,341 (Tex. Crim. App. April 21, 2004).
In March 2004, Applicant filed in the trial court his initial post-conviction application for a writ of habeas corpus in which he raised ten claims, including a claim that he in intellectually disabled, and therefore, ineligible for execution. See Atkins v. Virginia, 536 U.S. 304 (2002). This Court denied relief on the claims raised in his initial application. Ex parte Gutierrez, No. WR-70,152-01 (Tex. Crim. App. October 1, 2008). In February 2011, Applicant filed his first subsequent writ application, in which he again raised an Atkins claim. This Court dismissed the first subsequent writ application as an abuse of the writ without considering the merits of the claims. Ex parte Gutierrez, No. WR-70,152-02 (Tex. Crim. App. October 23, 2013).
Applicant unsuccessfully pursued habeas relief in federal district court. Gutierrez v. Davis, No. 5:09-CV-543 (W.D. Tex. July 29, 2016). Following the denial of Applicant's federal habeas petition, the United States Supreme Court issued Moore v. Texas, 137 S. Ct. 1039 (2017). Applicant then sought an abeyance in the Fifth Circuit in order to return to state court for review of his Atkins claim. The Fifth Circuit granted Applicant's motion to stay the proceedings. Gutierrez v. Davis, No. 16-70028 (5th Cir. August 30, 2017).
The instant subsequent writ application, which Applicant filed in the trial court on August 29, 2018, presents a single claim that Applicant's "death sentence is a violation of the Eighth and Fourteenth Amendments because he is intellectually disabled." Applicant 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. We find that, in light of Moore, Applicant has satisfied the requirements of Article 11.071, § 5(a)(1).
This cause is remanded to the habeas court to consider all of the evidence in light of the Moore v. Texas opinion and make a new recommendation to this Court on the issue of intellectual disability. If the habeas court deems it necessary, then it may receive evidence from mental health experts and any witnesses whose evidence the court determines is germane to the question of intellectual disability. The habeas court shall then make findings of fact and conclusions of law regarding the issue of intellectual disability, which it shall thereafter forward to this Court.
IT IS SO ORDERED THIS THE 11th DAY OF SEPTEMBER, 2019. Do Not Publish