Opinion
NO. WR-50,791-02
12-14-2011
EX PARTE JOHN REYES MATAMOROS
ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE
NO. 643410 IN THE 180TH JUDICIAL DISTRICT COURT
HARRIS COUNTY
Per Curiam .
ORDER
Applicant was convicted of the offense of capital murder in November 1992. The jury answered the special issues submitted under Article 37.071 of the Texas Code of Criminal Procedure, and the trial court, accordingly, set punishment at death. The conviction was affirmed on direct appeal. Matamoros v. State, 901 S.W.2d 470 (Tex. Crim. App. 1995). Applicant's initial habeas application, Ex parte Matamoros, WR-50,791-01, was denied in 2001. Applicant's subsequent application, Ex parte Matamoros, No. WR-50,791-02, in which he claimed that his execution would violate the Eighth Amendment's prohibition against the execution of the mentally retarded, was denied on June 13, 2007.
Applicant then filed a habeas petition in the United States District Court for the Southern District of Texas, which was denied. See Matamoros v. Thaler, No. H-07-2613, 2010 U.S. Dist. LEXIS 35425 (U.S. Dist. - Houston, March 31, 2010) (not designated for publication). Applicant then sought a certificate of appealability from the United States Court of Appeals for the Fifth Circuit. The Fifth Circuit entered an order staying those proceedings to allow applicant to return to state court to present his claim. See Matamoros v. Thaler, No. 10-70016 (5th Cir. June 20, 2011).
Applicant has now submitted a suggestion that this Court reconsider on its own initiative its 2007 denial of his Atkins claim. See Atkins v. Virginia, 536 U.S. 304 (2002). While the Rules of Appellate Procedure do not permit the filing of a motion for rehearing following the denial of a post-conviction application for 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").
This Court denied applicant's Atkins claim after Dr. George Denkowski testified for the State at the hearing on the -02 habeas application. In April 2011, Denkowski entered into a Settlement Agreement with the Texas State Board of Examiners of Psychologists, in which his license was "reprimanded." Pursuant to this Settlement Agreement, 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, we exercise our authority to reconsider this case on our own initiative.
This cause is remanded to the trial court to allow it the opportunity to re-evaluate its initial findings, conclusions, and recommendation in light of the Denkowski Settlement Agreement. The trial court may order affidavits or hold a live hearing if warranted. The trial court may re-adopt its prior findings of fact, conclusions of law, and recommendation, or it may make new or additional findings and conclusions and a new recommendation to this Court.
This cause will be held in abeyance pending the trial court's compliance with this order. The trial court shall resolve the issues presented within 60 days of the date of this order. A supplemental transcript containing the trial court's resolution or any additional findings of fact and conclusions of law shall be returned to this Court within 90 days of the date of this order.
In the event any continuances are granted, copies of the order granting the continuance should be provided to this Court.
Any extensions of this time period should be obtained from this Court.
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IT IS SO ORDERED THIS THE 14TH DAY OF DECEMBER, 2011. Do Not Publish