Opinion
NO. WR-41,121-03
09-18-2019
EX PARTE STEVEN ANTHONY BUTLER, Applicant
ON APPLICATION FOR WRIT OF HABEAS CORPUS CAUSE NO. 511112 IN THE 185TH DISTRICT COURT HARRIS COUNTY Per curiam. ORDER
On May 10, 1988, a jury convicted Applicant of capital murder. See TEX. PENAL CODE ANN. § 19.03. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071, and the trial court, accordingly, set punishment at death. This Court affirmed Applicant's conviction and sentence on direct appeal. Butler v. State, 872 S.W.2d 227 (Tex. Crim. App. 1994). On April 28, 1999, we denied his initial post-conviction application for a writ of habeas corpus pursuant to Article 11.071. Ex parte Butler, No. WR-41,121-01 (Tex. Crim. App. Apr. 28, 1999) (not designated for publication).
Unless otherwise specified, all references in this order to "articles" refer to the Texas Code of Criminal Procedure.
This Court received Applicant's first subsequent post-conviction application for a writ of habeas corpus on May 19, 2004. Therein, Applicant raised a claim that he was intellectually disabled and therefore categorically exempted from execution under the Supreme Court's holding in Atkins v. Virginia. We determined that Applicant's Atkins claim satisfied Article 11.071, § 5, and remanded the allegation to the habeas court for further consideration.
536 U.S. 304 (2002).
After a lengthy evidentiary hearing at which Dr. George Denkowski testified for the State, the habeas court entered findings of fact and conclusions of law and a recommendation that we deny relief. Based on those findings and conclusions and our own independent review of the record, we denied habeas relief on Applicant's Atkins claim. Ex parte Butler, No. WR-41,121-02 (Tex. Crim. App. June 27, 2007) (not designated for publication).
In April 2011, Dr. Denkowski entered into a Settlement Agreement with the Texas State Board of Examiners of Psychologists in which his license was "reprimanded." Under the settlement's terms, Denkowski agreed to not accept any engagement to perform forensic psychological services in the evaluation of subjects for mental retardation or intellectual disability in criminal proceedings.
In light of this Settlement Agreement, Applicant submitted a suggestion that we reconsider, on our own initiative, our 2007 denial of his Atkins claim. In a written order dated December 14, 2011, we exercised our authority to reconsider our initial disposition of Applicant's Atkins claim. We remanded this cause to the habeas court to allow it the opportunity to re-evaluate its initial findings, conclusions, and recommendation in light of the Denkowski Settlement Agreement. Ex parte Butler, No. WR-41,121-02 (Tex. Crim. App. Dec. 14, 2011) (not designated for publication).
Although the Rules of Appellate Procedure do not permit the filing of a motion for rehearing following the denial of a post-conviction application for a writ of habeas corpus, we may on our own initiative choose to exercise our authority to reconsider our initial disposition of a capital writ. See Ex parte Moreno, 245 S.W.3d 419, 427-29 (Tex. Crim. App. 2008) (stating that we may choose to exercise this authority only "under the most extraordinary of circumstances.").
On February 28, 2012, the trial court signed an order adopting the State's Proposed Findings of Fact and Conclusions of Law which recommended that we deny relief. On June 27, 2012, based upon our own independent review of the record and the trial court's February 2012 findings of fact and conclusions of law, we again denied habeas relief. Ex parte Butler, No. WR-41,121-02 (Tex. Crim. App. June 27, 2012) (not designated for publication).
The Supreme Court subsequently decided Moore v. Texas, 137 S. Ct. 1039 (2017) (Moore I), and Moore v. Texas, 139 S. Ct. 666 (2019) (Moore II). In those two cases, in relevant part, the Supreme Court rejected various aspects of this Court's analytical approach to Atkins claims, including our use of the Briseno factors.
Ex parte Briseno, 135 S.W.3d 1 (2004).
Applicant filed the instant habeas application in the trial court on August 29, 2018. Applicant raises a single claim in the application in which he asserts that, "when the analysis is guided by the medical community's consensus" the record will show that he "has intellectual disability, and is thus ineligible for the death penalty." We find that, in light of Moore I and Moore II, Applicant has satisfied the requirements of Article 11.071, § 5(a)(1).
We accordingly remand this cause to the habeas court to consider evidence in light of the Moore I and II opinions and to make a recommendation to this Court on the issue of intellectual disability. If the habeas court deems it necessary, it may receive evidence that it determines to be relevant to the question of intellectual disability. The habeas court shall then make findings of fact and conclusions of law regarding the issue of intellectual disability, which it shall thereafter forward to this Court.
IT IS SO ORDERED THIS THE 18th DAY OF SEPTEMBER, 2019. Do Not Publish