EX PARTE DOIL EDWARD LANE (other)

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS 

NO. WR-67,161-01
EX PARTE DOIL EDWARD LANE
ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE
NOS. CR-93-454-A IN THE 22ND DISTRICT COURT 
HAYS COUNTY 
Per curiam.
O R D E R

This is a post conviction application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure article 11.071.

In February 1994, a jury convicted applicant of the offense of capital murder committed in March 1980. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure article 37.0711, and the trial court, accordingly, set punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Lane v. State, 933 S.W.2d 504 (Tex. Crim. App. 1996).

On March 5, 1998, applicant filed an initial Article 11.071 application for writ of habeas corpus with the convicting court in which he raised fourteen allegations including a claim that he was mentally retarded and could not constitutionally be executed. Proposed findings and conclusions were filed by both parties in June 2000. The trial court did not make its own findings of fact or conclusions of law regarding the allegations raised, and the writ record was not timely forwarded to this Court as required by Article 11.071 8 (after no hearing) or Article 11.071 9 (after a hearing).

In August 2002, applicant filed his first subsequent application in the trial court again asserting that he is mentally retarded and that his execution will violate the Eighth Amendment as set out in the United States Supreme Court holding in Atkins v. Virginia, 536 U.S. 304 (2002). The subsequent application was not forwarded to this Court as required by Article 11.071 5(b). Instead, in November 2006, the trial court reviewed the merits of the allegation and, based upon the agreed findings of the parties that applicant was mentally retarded, entered findings and conclusions recommending that applicant's sentence be commuted to life in prison.

Before the record on the subsequent application was forwarded to this Court, the matter was submitted to the Governor, who, on March 9, 2007, commuted applicant's sentence to life in prison. Thereafter, applicant submitted a "motion to non-suit" both cases because he had "received the relief he requested in both his original writ . . . and his subsequent application." On June 21, 2007, the trial court signed an order granting applicant's "motion to non-suit" in both cases, finding the applications moot.

In an unpublished order issued on August 1, 2007, this Court noted that applicant's conclusion that he received the relief he requested was an incorrect statement because he received no relief regarding the allegations pertaining to the guilt portion of his trial. The Court also noted that the trial court's conclusion that both applications were rendered moot by the Governor's commutation of his sentence was a misstatement of the law. This Court was vested with appellate jurisdiction at the time applicant was convicted of capital murder and sentenced to death and retains jurisdiction to review the claims raised in the initial application that pertained to the guilt phase. See Ex parte Jackson, 187 S.W.3d 416 (Tex. Crim. App. 2005). Thus, this Court ordered the trial court to clarify whether applicant, by way of his "motion to non-suit," knowingly and voluntarily intended to waive or pursue his claims for relief pertaining to the guilt phase of trial. The Court further ordered the trial court, in light of the finding that applicant is mentally retarded, to determine whether applicant is able to knowingly and voluntarily waive the claims at issue.

In response to this order, the clerk submitted a supplemental record to this Court consisting of Joint Findings of Fact and Conclusions of Law signed by the trial judge and submitted to the trial court by the Criminal District Attorney of Hays County, an Assistant District Attorney, an Assistant Attorney General, and Applicant's Defense Counsel. In these findings and conclusions, the trial court found no evidence that applicant intended to waive his claims pertaining to the guilt phase of trial, but also concluded that there is no legal mechanism in a post-conviction proceeding for determining whether applicant is able to knowingly and voluntarily waive those claims. Additionally, the court found that the Governor's commutation rendered it without jurisdiction to act further in the case. We do not agree with these findings and conclusions.

While the commutation by the Governor may render the punishment issues moot, this Court has jurisdiction to consider the habeas application filed by applicant, and the convicting court shall address the issues as directed by this Court. Because there is no evidence in the record that applicant intends to waive his claims pertaining to the guilt phase of trial, the trial court is ordered to resolve the issues raised in applicant's initial writ application and, within sixty (60) days of the date of this order, have the clerk return to this Court a supplemental record including the court's findings and conclusions resolving those issues.

IT IS SO ORDERED THIS THE 16TH DAY OF JANUARY, 2008.

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