Lizcano, Juan

• Court: Court of Appeals of Texas
• Decided: June 6, 2018
• Docket: WR-68,348-03
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-68,348-03

EX PARTE JUAN LIZCANO, Applicant

ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE NO. W05-59563-S IN THE 282 ND JUDICIAL DISTRICT COURT DALLAS COUNTY

Per curiam.

ORDER

This is an initial application for a writ of habeas corpus filed pursuant to the provisions

of Texas Code of Criminal Procedure Article 11.071.

In October 2007, applicant was convicted of capital murder and sentenced to death for

killing Dallas Police Officer Brian Jackson. We affirmed the conviction and sentence on

direct appeal. Lizcano v. State, No. AP-75,879 (Tex. Crim. App. May 5, 2010) (not

designated for publication). Applicant then filed an application for writ of habeas corpus. In

that application, applicant alleged in his sixth claim for relief that he is intellectually disabled Lizcano - 2

and ineligible for the death penalty under the United States Supreme Court’s holding in Atkins

v. Virginia, 536 U.S. 304, 321 (2002). We denied that application in 2015. Ex parte Lizcano,

No. WR-68,348-03 (Tex. Crim. App. April 15, 2015) (not designated for publication).

Applicant then filed a federal habeas petition. While his petition was pending, the

United States Supreme Court handed down its opinion in Moore v. Texas, 137 S.Ct. 1039

(2017). In Moore v. Texas, the Supreme Court rejected the use of the Briseno 1 factors to

analyze adaptive deficits because they “creat[e] an unacceptable risk that persons with

intellectual disability will be executed.” 137 S.Ct. at 1051.

Following the Moore v. Texas opinion, the federal district court stayed its proceedings

to enable applicant to seek this Court’s reconsideration of his Atkins claim. See Lizcano v.

Davis, No. 3:16-cv-1008-B, Doc.51 (N. Dist. Oct. 6, 2017) (order adopting magistrate’s

recommendation and granting stay). Applicant has now submitted a suggestion for this Court

to “reconsider its April 15, 2015, order on its own initiative.” He asks us to reconsider his

Atkins claim in light of Moore v. Texas.

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

1 Ex parte Briseno, 135 S.W.3d 1, 8 (Tex. Crim. App. 2004). Lizcano - 3

circumstances”). In light of the United States Supreme Court’s recent opinion in Moore v.

Texas, we exercise our authority to reconsider this case on our own initiative.

This cause is remanded to the habeas court to allow it the opportunity to develop

evidence, make new or additional findings of fact and conclusions of law, and make a new

recommendation to this Court on the issue of intellectual disability. The habeas court may

receive evidence from mental health experts and any witnesses whose evidence the court

determines is germane to the question of intellectual disability. The court should consider all

of the evidence in light of the Moore v. Texas opinion. The habeas court shall then make

findings of fact and conclusions of law regarding the issue of intellectual disability and any

other issue the court deems pertinent to the resolution of this claim.

This cause will be held in abeyance pending the trial court’s compliance with this

order. The habeas court shall resolve the issue and make the required findings and

conclusions within 60 days of the date of this order. Immediately thereafter, the clerk shall

forward to this Court a supplemental transcript containing the trial court’s findings of fact and

conclusions of law, any additional documents filed, and the transcripts of any hearings. Any

extensions of time shall be obtained from this Court.

IT IS SO ORDERED THIS THE 6 TH DAY OF JUNE, 2018.

Do not publish