Opinion
NO. WR-86,572-01
09-16-2020
EX PARTE HARLEM HAROLD LEWIS III, Applicant
ON APPLICATION FOR WRIT OF HABEAS CORPUS CAUSE NO. 1420102-A IN THE 351ST JUDICIAL DISTRICT COURT HARRIS COUNTY Per curiam. NEWELL, J., did not participate. ORDER
This is an initial 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. --------
In July 2014, a jury convicted applicant of capital murder. The evidence showed that, after engaging in a high-speed automobile chase to avoid a traffic stop, applicant shot and killed Corporal Jimmie Norman, a Bellaire Police Department (BPD) patrolman, and Terry Taylor, a bystander, during the same criminal transaction in December 2012. See TEX. PENAL CODE § 19.03(a)(7)(A). 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 his conviction on direct appeal. See Lewis v. State, No. AP-77,045 (delivered April 26, 2017)(Newell, J., not participating)(not designated for publication).
In September 2016, 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 is intellectually disabled, and therefore, ineligible for execution. See Atkins v. Virginia, 536 U.S. 304 (2002). The issue of intellectual disability was not litigated at trial and the habeas court did not hold a hearing to receive evidence on this issue. We further note that there have been significant additions to the law regarding intellectual disability since the time of applicant's trial. See, e.g., Moore v. Texas, 137 S. Ct. 1039 (2017); Moore v. Texas, 139 S.Ct. 666 (2019).
In support of his claim, applicant has provided the affidavits of two medical experts. Both experts conclude that applicant meets the diagnostic criteria for mild intellectual disability set forth in the fifth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders ("DSM-5"); the eleventh edition of the American Association on Intellectual and Developmental Disabilities' Intellectual Disability: Definition, Classification, and Systems of Supports ("AAIDD Manual"); and the ninth edition of AAIDD's Mental Retardation: Definition, Classification, and Systems of Supports ("AAMR Manual"'). Applicant has, therefore, alleged facts that, if true, might entitle him to relief.
In these circumstances, additional fact-finding is needed. As we held in Ex parte Rodriguez, 169 Tex. Crim. 367, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. See also TEX. CODE CRIM. PROC. art. 11.071, § 9(a).
This cause is remanded to the habeas court to 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. This application will be held in abeyance until the trial court has resolved the fact issues.
IT IS SO ORDERED THIS THE 16th DAY OF SEPTEMBER, 2020. Do Not Publish