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 19 TH JUDICIAL DISTRICT COURT
McLENNAN COUNTY
Per curiam. Y EARY, J., filed an opinion dissenting in part and concurring in
part.
ORDER
In April 2014, a jury found Applicant guilty of the offense of capital murder and
the trial court sentenced him to death. See T EX. P ENAL C ODE § 19.03(a); T EX. C ODE
C RIM. P ROC. art. 37.071.1 On June 6, 2016, the State filed in this Court its brief on
Applicant’s direct appeal. Pursuant to Article 11.071 §§ 4(a) and (b), Applicant’s initial
1
Unless otherwise indicated, all references in this order to Articles refer to the Texas
Code of Criminal Procedure.
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application for a writ of habeas corpus was due to be filed in the trial court on or before
October 19, 2016, assuming a motion for extension was timely filed and granted. See Art.
11.071 §§ 4(a) and (b).
On January 13, 2021, because it had been more than four years since the
application was due in the trial court, we ordered the trial court to resolve any remaining
issues in the case within 60 days from the date of the order. We also ordered the clerk to
thereafter immediately transmit the complete writ record to this Court. This made the
case due in this Court on or before March 15, 2021.
Citing to the fact that he had just assumed the bench, the trial judge requested an
extension of 90 days. We granted the judge’s request, making the case due in this Court
on or before June 14, 2021. That judge subsequently recused himself and the newly
retired judge, who had been the trial judge in this case, was appointed to hear the
application.
On May 15, 2021, this Court reversed Applicant’s death sentence on direct appeal
and remanded the case for a new punishment trial. See Petetan v. State, S.W.3d ,
No. AP-77,038 (Tex. Crim. App. del. May 12, 2021) (op. on reh’g).2 Shortly thereafter,
recognizing that there remained some guilt issues to resolve, the newly appointed judge
requested an extension in the case of 120 days or to October 12, 2021, to resolve those
2
We recognize that this renders moot any claims raised on habeas affecting the
punishment phase of trial. However, the trial judge acknowledged that there are still guilt phase
claims that must be resolved.
Petetan - 3
issues. We granted the motion.
In a new request for an extension, the trial judge notes that counsel has expressed
concerns that the reversal of Applicant’s death sentence deprives the trial court of the
authority to proceed. The trial judge also notes that Applicant informed him that a
similarly situated case is currently pending before the Court of Criminal Appeals. See Ex
parte Brownlow, No. WR-85,286-01.3 Under the circumstances, the trial judge now asks
for an extension of time to January 15, 2022, to allow this Court to rule in the Brownlow
case and to allow the trial court to finalize the writ record in Applicant’s case and return it
to this Court. We will grant an extension to December 31, 2021. The case is due back in
this Court on or before that date.
Any further extensions of time shall be requested by the trial judge, or on the
judge’s behalf, and obtained from this Court. Any such request shall also be
accompanied by a detailed statement showing what efforts have been undertaken to
resolve the issues raised and good cause for why an additional extension is warranted.
It has also come to our attention that Applicant has filed a document titled an
“Amended 11.07 Application.” According to Applicant, this document is intended to add
additional claims to the writ application already pending in the trial court, which,
Applicant asserts, the trial court has “converted” to an Article 11.07 writ application.
The habeas application currently pending in the trial court was properly filed
3
This Court resolved the Brownlow case contrary to Applicant’s position. See Ex parte
Brownlow, S.W.3d , No. WR-85,286-01 (Tex. Crim. App. Sept. 15, 2021).
Petetan - 4
pursuant to Article 11.071. Our reversal of Applicant’s death sentence on direct appeal
does not change its characterization. And per the language of Article 11.071, Applicant’s
attempted amendment is far too late. Additionally, because Applicant is no longer under
a sentence of death, the new filing is not properly considered as a subsequent Article
11.071 writ application.
Finally, the new document does not qualify as an Article 11.07 writ application.
Article 11.07 can only be used to attack final felony convictions. See Art. 11.07 § 3.
Because Applicant is still awaiting final sentencing (and possibly an appeal of that
sentencing), his conviction is not final, and Article 11.07 does not apply. Thus, we
conclude that the document is not properly filed, and we dismiss it without reviewing the
merits of the claims raised.
IT IS SO ORDERED THIS THE 20th DAY OF OCTOBER, 2021.
Do Not Publish