EX PARTE DEMETRIUS LOTT SIMMS v. << (2023)

The Court today denies Applicant's postconviction application for a writ of habeas corpus, filed under Texas Code of Criminal Procedure Article 11.071, on the merits. TEX. CODE CRIM. PROC. art. 11.071 (“Procedure in death penalty case”). Because this Court previously reformed Applicant's sentence from death to life imprisonment, Ex parte Simms, No. WR-56,811-01 (Tex. Crim. App. Feb. 28, 2007) (not designated for publication), I would dismiss his application rather than deny relief. See Ex parte Dixon, No. WR-56,822-02 *4 (Tex. Crim. App. June 21, 2023) (Yeary, J., dissenting) (“this Court in the present case ․ lacks authority to grant Applicant relief pursuant to Article 11.071 because he ․ no longer has a judgment imposing a penalty of death.”).

I write separately to reiterate my views expressed in Dixon. As in that case, here, Applicant filed his initial postconviction application for a writ of habeas corpus under Article 11.071. Section 1 of that 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.” TEX. CODE CRIM. PROC. art. 11.071 § 1 (emphasis added). Although Applicant's initial postconviction writ application sought relief from such a judgment when he filed it, this Court's reformation of his death sentence to life imprisonment, pursuant to Atkins v. Virginia, 536 U.S. 304 (2002) (holding that the Eighth Amendment prohibits the execution of intellectually disabled offenders), means he no longer seeks relief from a judgment imposing a sentence of death. Consequently, his initial application is now moot. The proper remedy is to dismiss Applicant's writ application and allow him to file a new writ application pursuant to Article 11.07.

YEARY, J., filed a dissenting opinion.