Should the CCA Apply a Standard Currently Being Reviewed by SCOTUS?

Today's case is Us Carnell Petetan, Jr. v. State of Texas, ____ S.W.3d _____, No. AP-77,038, (Tex. Crim. App. Mar. 8, 2017). Petetan was convicted and sentenced to death in the 19th Judicial District in Waco. A CCA appeal is automatic.
The Court's opinion was written by Presiding Judge Sharon Keller and joined by all the judges except Judge Elsa Alcala, who wrote a dissent on a single issue-- that Petetan's automatic appeal as to whether or not he had too low an I.Q. to be executed was not ripe for decision, because Moore v. Texas No. 15-797 (pet. granted June 6, 2016, argued Nov. 29, 2016).had been accepted by the Supreme Court of the United States and argued as to whether Texas’s legal standard for determining intellectual disability violates the Eighth Amendment’s prohibition against the execution of intellectually disabled people. She said that SCOTUS's decisions in Atkins v. Virginia 536 U.S. 304 (2002) and Hall v. Florida, 134 S. Ct. 1986 (2014) signal that any assessment of intellectual disability must be informed by, and cannot be untethered from, the current medical diagnostic framework for assessing intellectual disability, but this Court’s standard in Ex parte Briseno, 135 S.W.3d 1, 4-5 (Tex. Crim. App. 2004). has strayed from that requirement.
The majority held that that there was sufficient evidence to find that Petetan intentionally killed his wife while he was kidnapping his wife and her daughter.

Illiterate Defendant's Ineffective Assistance of Counsel Held No Excuse for Habeas Application Almost 20 Years after Conviction

Alberto Giron Perez was convicted of murder. He received a 88-year sentence in 1991. He had appointed counsel on appeal-- it is not clear whether his appellate counsel was the same as his trial counsel-- and Perez lost his appeal October 9, 1992. His appointed lawyer failed to notify Perez of his loss at the Court of Appeals until 1993. Perez had a right to appointed counsel on appeal to the Court of Appeals, but did not have a right to appointed counsel to apply to get discretionary review from the Texas's Court of Criminal Appeals. From the time that the appeals court finally decides a case, the loser in that court only has 30 days to file a petition for discretionary review, and, ordinarily, an indigent has to file it without the help of counsel. More than 30 days had passed when Perez first learned that he had lost his appeal-- he only found out in 1993-- so he was barred from asking the CCA to consider his case on direct appeal. When Perez found out about his loss and that his lawyer's action barred him from direct appeal, he sued that lawyer civilly and filed a grievance. However, Perez did not file an application for a writ for habeas corpus until September 2011. Applicants like Perez are subject to Texas Code of Criminal Procedure article 11.07. It has no deadline by which an initial application must be made. The district attorney in the case complained that Perez's delay in applying for his writ made the case not capable of being retried if Perez prevailed. Judge Elsa Alcala wrote for all the members of the court save dissenting Judge Laurence E. Meyers .The court held that Perez knew or should have known that he had a meritorious writ application in 1993, and that the delay between 1993 and 2011 was his fault so that the equitable doctrine of laches applied to his application. In equity, if someone asks for relief from a court, but delays asking for that relief so that the person asking for relief gains a marginal advantage over that person's adversary, that is not fair to the adversary and relief should be denied on that basis. This result obtains even if the relief is sought within a statute of limitations. 11.07 gives no deadline for a first application for habeas corpus.
Judge Meyers's dissent argued that the court's opinion contravened the will of the legislature since the Lege could have easily put in:

1.  a deadline or
2. an acknowledgement that laches applied

to 11.07 writ applications, but it did not. He noted that Perez was illiterate, and that Perez was in this mess because of his appellate counsel's ineffective assistance of him, which was not Perez's fault.
I hate it when people are denied appellate relief other than on the merits.  See Tex. R. Civ. P. 1. But Perez or his family members were almost certainly told by the initial appellate lawyer or the lawyer who did the civil suit that Perez should apply for habeas corpus relief, and, generally, the sooner the better. Really, more than 19 years is too long to wait.
The thinking in this case might lay the groundwork for how Texas courts deal with Jerry Hartsfield, the defendant whose 1983 reversal of his conviction was never implemented. His efficacious federal writ application was filed Oct. 22, 2007. His facts are different, though. He filed a number of pro se motions for relief earlier and didn't have counsel to help him until shortly after he filed his federal writ. Hartsfield's claims of post-conviction ignorance are much more reasonable than Perez's. The law in his case is different, too. Hartsfield got the death penalty at the trial court, so his post-conviction rules are different.
Hat tip for this case to the estimable Jim Skelton.
Ex parte Perez, No. AP-76,800 (Tex. Ct. Crim. App. Oct. 8, 2014 available at ww.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=35d3f487-d044-4f01-9b49-c473fa02ef2b&coa=coscca&DT=OPINION&MediaID=55f5c7f0-26f3-4adb-b5d0-1b93e38aff4e)

If You Mail Your Notice of Appeal Timely, and It Gets to the Trial Court Clerk Less than 10 Days after the Deadline, That's Good Enough..

You invoke the jurisdiction of a Texas state appeals court by filing a notice of appeal in the trial court whose ruling or judgment you are unhappy with. If a notice of appeal is sent to the appeals court clerk by mistake, the clerk is supposed to send it to the proper trial court clerk. Texas Rule of Appellate Procedure 9.2(b)(1) is that "[a] document received within ten days after the filing deadline is considered timely filed if:

(A) it was sent to the proper clerk by United States Postal Service or a commercial delivery service;
(B) it was placed in an envelope or wrapper properly addressed and stamped; and
(C) it was deposited in the mail or delivered to a commercial delivery service on or before the last day for filing."

Prisoner Henry Earl Taylor caught a criminal judgment that he didn't want on November 18, 2010. He didn't file a motion for new trial so his notice of appeal was due 30 days later: December 18, 2010.  December 18, 2010 was a Saturday, so Taylor had till Monday December 20, 2010. The Clerk of the First Court of Appeals in Houston stamped a undated, handwritten notice of appeal December 21, 2010.  The trial court clerk stamped the notice of appeal as received on December 27, 2010. A panel of First Court Justices Laura Carter Higley, Jim Sharp, and Rebecca Huddle wrote a not-for-publication per curiam memorandum opinion that said that the record did not have an envelope nor a certificate of service for the notice. They said that Taylor's appellate counsel had not argued that the filing was timely, but that the First had given permission for the notice to be late in an October ruling. When Taylor himself finally urged that he had mailed timely and that the notice had been received timely, the panel said that he had not because he had not sent it to the proper clerk, properly addressed and stamped and that there was no proof that he had placed it in an envelope or wrapper. It dismissed the appeal. Texas Court of Criminal Appeals Judge Elsa Alcala, writing an opinion for a majority including Judges Lawrence E. Meyers, Tom Price, Cheryl Johnson, Barbara Parker Hervey, and Cathy Cochran, overruled the panel " . . .because the rules of appellate procedure required the clerk of the court of appeals to forward appellant’s notice of appeal to the trial-court clerk, and because his notice of appeal was actually received by the convicting court within the time limits established under the mailbox rule, appellant’s apparent mistake in sending his notice of appeal to the court of appeals instead of to the district-court clerk was, at most, a harmless procedural defect that did not render the notice of appeal untimely."

Presiding Judge Sharon Keller's dissent, joined by Judge Michael E. Keasler, appears to me to be well reasoned. She argues that the majority does not address Houston's point-- that there is no proof that the notice was enveloped and mailed straight to any clerk, even if one agrees with Taylor that his mailbox drop and the trial court's eventual receipt less than ten days was timely. Judge Paul Womack dissented without opinion.

This case reminds me of September's Cortez case in which the CCA reversed Amarillo's Seventh Court of Appeals for what the high judges took to be a cheesy dismissal.

The State of Texas is in the process of gradually switching from paper filing to electronic filing, though there are no present plans to ever make unrepresented prisoner litigants file electronically, Electronic filing will minimize the cases in which these mailbox rules will be relevant.

Henry Earl Taylor v. State of Texas, No.PD-0180-13, (Tex. Crim. App., Feb. 5, 2014) (slip op.)
Hat tip to the learned, charming, and extremely plain-spoken Jim Skelton and his Criminal Law Institute, which I recommend highly.