EX PARTE DIXON v. << (2023)

The Court today remands Applicant's postconviction application for a writ of habeas corpus, filed pursuant to Article 11.071 of the Texas Code of Criminal Procedure, instructing the convicting court to make findings of fact and conclusions of law pertinent to one particular claim. Tex. Code Crim. Proc. art. 11.071. In that claim, Applicant asserts that his conviction violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution because he was incompetent to stand trial. Applicant, however, has a felony judgment imposing a penalty other than death. U.S. Const. amend. XIV, § 1. Therefore, at this point there is no writ application to remand, because Applicant's Article 11.071 writ application is moot. In my view, a new writ application must be filed pursuant to Article 11.07. Tex. Code Crim. Proc. art. 11.07. Because the Court does not dismiss the present writ application so that Applicant can refile under Article 11.07, I respectfully dissent.

Applicant was convicted of capital murder and sentenced to death in 1995. He filed his initial (-02) Article 11.071 writ application,¹ the subject of this order, in August of 1998. He later filed his first subsequent (-01) 11.071 writ application, in June of 2003, raising only an Atkins claim. See Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). This Court ultimately dismissed Applicant's (-01) writ application as moot because, in June of 2005, in the wake of the United States Supreme Court's decision in Roper v. Simmons, Governor Rick Perry commuted his death sentence to a sentence of life imprisonment. See 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (holding that the Eighth Amendment prohibits the execution of offenders who were under eighteen when they committed their offenses). Accordingly, Applicant is no longer subject to a sentence of death. The State did not answer Applicant's initial (-02) application until August of 2014, and this Court did not receive the (-02) application and the State's response to it until August of 2022.

Applicant filed his initial postconviction application for writ of habeas corpus under Article 11.071. Section 1 of that article provides:

Notwithstanding any other provision of [Chapter 11 of the Code of Criminal Procedure], this 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, Governor Perry's commutation of his death sentence to a sentence of life imprisonment means he no longer seeks relief from a judgment imposing a sentence of death. Even assuming his judgment may still seem on its face to impose a sentence of death, if it does, that sentence has necessarily been at least superseded by Governor Perry's commutation. Consequently, to the degree his initial application seeks relief from such a judgment, it is now moot. Whether it says so or not, Applicant's judgment no longer imposes a sentence of death. In my view, this Court lacks any vestigial authority to proceed with the writ application under the provisions of Article 11.071.

In Brownlow, the applicant was convicted of capital murder in 2016 and filed his brief on direct appeal in 2018. Ex parte Brownlow, 630 S.W.3d 61 (Tex. Crim. App. 2021) (Yeary, J., dissenting). Brownlow filed his original postconviction application for writ of habeas corpus under Article 11.071 in 2019. In 2020, this Court reversed the punishment phase of his trial on direct appeal and remanded his case to the trial court for a new punishment proceeding. Brownlow v. State, No. AP-77, 2020 WL 718026 (Tex. Crim. App. Feb. 12, 2020) (not designated for publication). Brownlow then filed a motion requesting that this Court dismiss his current Article 11.071 writ application without prejudice to file a new one should he again be sentenced to death. It was my view that we should have granted that motion precisely because Brownlow no longer had a judgment that imposed a penalty of death. Furthermore, the Court may not entertain a postconviction application for writ of habeas corpus pursuant to Article 11.07 until a judgment of conviction for a felony is final—Brownlow had not yet been resentenced. Consequently, we could not have known which provision would have controlled the postconviction habeas corpus proceedings, Article 11.07 or Article 11.071.

Therefore, it was my position in Brownlow that this Court lacked authority to grant the applicant relief pursuant to either Article 11.071 or Article 11.07. See also Ex parte Petetan, 632 S.W.3d 538, 538 (Tex. Crim. App. 2021) (Yeary, J., dissenting) (arguing that this Court lacked authority to grant the applicant relief pursuant to Article 11.07 or Article 11.071 because the Court vacated the applicant's death sentence on direct appeal, based on punishment-phase error, and remanded the cause to the trial court for another punishment hearing). Similarly, this Court in the present case also lacks authority to grant Applicant relief pursuant to Article 11.071 because he also no longer has a judgment imposing a penalty of death. Because he was convicted of capital murder, and because Governor Perry commuted his sentence to life imprisonment, Applicant's sentence is a life sentence as a matter of law.

Of course, this case is not exactly like Brownlow or Petetan, since this Court does presently have authority to consider a writ application from Applicant brought pursuant to Article 11.07. In Brownlow and Petetan, the Court could not proceed pursuant to Article 11.07 because the applicants had not yet received a sentence in a felony case at all. Here, by contrast, when Governor Perry commuted Applicant's death penalty to life imprisonment, this effectively changed his judgment from one “imposing a penalty of death” (Article 11.071, § 1) to one “imposing a penalty other than death.” (Article 11.07, § 1). Thus, this case is ripe for review, but it must be refiled pursuant to Article 11.07, not Article 11.071.

The right thing for this Court to do is first dismiss Applicant's writ application. Then, Applicant could immediately file a new writ application pursuant to Article 11.07, being sure to utilize the form required by Rule 73.1(a) of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 73.1(a) (“An application for postconviction habeas corpus relief in a felony case without a death penalty, under Code of Criminal Procedure article 11.07, must be made in the form prescribed by the Court of Criminal Appeals in an order entered for that purpose.”) Because the Court instead remands a moot application, I respectfully dissent.

FOOTNOTES

1.   Applicant's subsequent writ application (-01) arrived first in this Court and was designated -01. His initial writ application arrived at this Court much later and was designated -02.

Yeary, J., filed dissenting opinion.