Lewis, David Lee ( 2004 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-38,355-03

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EX PARTE DAVID LEE LEWIS, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS FROM ANGELINA COUNTY

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   Per Curiam. Keller, P.J., and Hervey, J., dissented.

ORDER

This is a subsequent application for a writ of habeas corpus which was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Tex. Code Crim. Proc. art 11.071. In April 1987, applicant was convicted of the capital murder of Mrs. Myrtle Ruby, a seventy-four-year-old widow, while in the course of burglarizing her home. At the punishment phase, the jury answered the special issues affirmatively, so the trial court sentenced applicant to death. Direct appeal to this Court was automatic. Because the court reporter lost some of her shorthand notes from voir dire, we reversed applicant's conviction and remanded the case for a new trial. ⁽¹⁾ On re-trial in June of 1993, applicant pleaded guilty to the offense of capital murder. The second jury answered the special issues affirmatively, and the trial court again assessed punishment at death. This Court affirmed. ⁽²⁾   

Applicant filed his first habeas corpus application in December 1997, and, after an evidentiary hearing, it was denied with written order. His second was dismissed pursuant to 11.071, § 5. This, his third application, contained two claims:

1. "Mr. Lewis's execution would violate the Eighth Amendment's prohibition against the execution of the mentally retarded."

2. "Mr. Lewis's death sentence violates the Sixth Amendment under Atkins and Ring, because the jury's verdict did not include a determination of an essential element of capital murder - that Mr. Lewis is not mentally retarded."

On October 15, 2003, this Court remanded applicant's first claim to the trial court and dismissed his second claim pursuant to 11.071, § 5.

The trial court has entered an order concluding that, after the consideration of applicant's writ, the State's answer, and the testimony of two psychologists who testified in the first trial, "[i]t appears to the court that no unresolved factual issues exist" concerning the issue of whether applicant is mentally retarded. However, we disagree. Neither the State nor applicant have had an adequate opportunity to develop all of the testimony, documentary materials, or other evidence necessary to resolve applicant's claim. The testimony from two psychologists from the original trial of this case and upon which the trial court expressly relies is not included in the habeas record. Furthermore, applicant has filed written objections to the trial court's failure to conduct a live evidentiary hearing and asserts his inability to fully develop the factual basis for his claim without expert assistance. ⁽³⁾

Although the trial court has entered findings of fact and conclusions of law, because the issue of applicant's mental retardation requires further resolution, and since this Court cannot hear evidence, ⁽⁴⁾ it is necessary for the matter to be remanded to the trial court for an evidentiary hearing, at which both the State and applicant may introduce additional materials and, under these particular circumstances, witness testimony.

Following receipt of additional information, the trial court should make findings of fact as to whether applicant is mentally retarded under the constitutional rule set out in Atkins v. Virginia, ⁽⁵⁾ as implemented by this court in Ex parte Briseno. ⁽⁶⁾ The trial court should also make any further findings of fact and conclusions of law it deems relevant and appropriate to the disposition of the application for writ of habeas corpus.

This subsequent application for a writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. The trial court shall resolve the issues presented within 120 days of the date of this order. ⁽⁷⁾ A supplemental transcript containing all affidavits, documentary materials, relevant transcripts from applicant's trials, and the transcription of the court reporter's notes from all hearings held, along with the trial court's findings of fact and conclusions of law, shall be returned to this Court within 180 days of the date of this order. ⁽⁸⁾

IT IS SO ORDERED THIS THE 8th DAY OF DECEMBER, 2004.

DO NOT PUBLISH

1.

Lewis v. State, 844 S.W.2d 750 (Tex.Crim.App. 1993).

2.

Lewis v. State, 911 S.W.2d 1 (Tex. Crim. App. 1995).

3.

See Ake v. Oklahoma, 470 U.S. 68 (1985).

4.

Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960).

5. 536 U.S. 304 (2002).

6. 135 S.W.3d 1 (Tex. Crim. App. 2004).

7. In the event any continuances are granted, copies of the order granting the continuance should be provided to this Court.

8. Any extensions of this time period should be obtained from this Court.