Petetan, US Carnell Jr. ( 2021 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. WR-60,937-06 and WR-60,937-07
EX PARTE U. S. CARNELL PETETAN JR., Applicant
ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS
IN CAUSE NO. 2012-2331-C1A IN THE 19TH JUDICIAL DISTRICT COURT
McLENNAN COUNTY
YEARY, J., filed an opinion dissenting in part and concurring in part.
DISSENTING AND CONCURRING OPINION
The Court’s order today grants the convicting court an extension of time to complete
its fact findings and recommendations for this Court relating to Applicant’s initial post-
conviction application for writ of habeas corpus, which was initially filed in a case in which
the death penalty had been imposed, under Article 11.071 of the Texas Code of Criminal
Procedure. TEX. CODE CRIM. PROC. art. 11.071, § 1. The problem is, this Court vacated
Applicant’s death sentence on direct appeal, on the basis of punishment-phase error, and it
remanded the cause to the trial court for another punishment hearing. Petetan v. State, 622
S.W.3d 321 (Tex. Crim. App. 2021). For the reasons I have explained in my dissenting
opinion in Ex parte Brownlow, ___ S.W.3d ___, No. WR-85,286-01, 2021 WL 4197415,
PETETAN — 2
at *2 (Tex. Crim. App. del. Sept. 15, 2021) (Yeary, J., dissenting), I believe the Court
should dismiss this application on the basis that it no longer has authority to proceed, since
there is no longer any “judgment imposing a penalty of death” that exists in this case. See
TEX. CODE CRIM. PROC. art. 11.071, § 1 (“[T]his article establishes the procedures for an
application for a writ of habeas corpus in which the applicant seeks relief from a judgment
imposing a penalty of death.”) (emphasis added). Indeed, we have no way of knowing, at
this point in time, whether Applicant will once again be sentenced to death. Because the
Court does not simply dismiss Cause Number WR-60,937-06, I respectfully dissent to the
Court’s action in that case.
On the other hand, I agree with the Court’s order to the extent that it dismisses
Applicant’s purported Article 11.07 post-conviction application for writ of habeas corpus.
Any writ brought under the auspices of Article 11.07 is premature since, until such time as
Applicant is once again sentenced for his crime, his conviction is not final for purposes of
our acquiring authority to entertain a non-capital felony writ application under that
provision. See Brownlow, ___ S.W.3d at ___, 2021 WL 4197415, at *2; TEX. CODE CRIM.
PROC. art. 11.07, § 1 (“This article establishes the procedures for an application for writ of
habeas corpus in which the applicant seeks relief from a felony judgment imposing a
sentence other than death.”) (emphasis added). Because the Court appropriately dismisses
Cause Number WR-60,937-07, I concur with the Court’s action in that case.
As far as I am concerned, all felony post-conviction habeas corpus proceedings in
this case should halt and be dismissed, at least until such time as Applicant has obtained a
new sentence pursuant to our remand on direct appeal and then chooses, if he does, to file
a new application under the appropriate Code of Criminal Procedure Chapter 11 article.
PETETAN — 3
See id. at *4 (“I would grant Applicant’s motion to dismiss his Article 11.071 writ
application without prejudice to re-file it . . . at a later date as may become appropriate; and
without prejudice to filing an Article 11.071 writ application, should that eventually prove
to be the appropriate procedure after all.”). To do otherwise, as the Court does today,
unnecessarily complicates the previously obvious distinctions between death-penalty
versus non-death-penalty capital applications for the writ of habeas corpus.
Our Legislature has provided clear and distinct procedures for felony post-
conviction habeas applications, which proceed along markedly different paths depending
entirely on whether a sentence of death or some other sentence has been imposed. At
present, of course, Applicant’s case is in a posture in which no sentence at all is imposed.
It is possible that he might either once again be sentenced to death or that a life sentence
will be imposed. Once his new sentence is imposed, the appropriate habeas path will be
obvious. But until that happens, we have no authority to entertain his previous filings.
Because the Court refuses to dismiss both of Applicant’s current writ applications and
wait—as the clear legislative directives require—to see first whether Applicant is
sentenced to death or life, I cannot join its order.
FILED: October 20, 2021
PUBLISH