Petetan, US Carnell Jr. A/K/A Carnell Petetan, Jr.

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. AP-77,038

US CARNELL PETETAN, JR., Appellant v.

THE STATE OF TEXAS

ON REHEARING UPON COURT’S OWN MOTION

FROM CAUSE NO. 2012-2331-C1 IN THE 19TH DISTRICT COURT

McLENNAN COUNTY N EWELL, J. filed a concurring opinion in which R ICHARDSON AND W ALKER JJ. joined.

On original submission, Appellant raised multiple grounds claiming, in essence, that he should be exempted from the death penalty due to his intellectual disability.1 We addressed his claims even as the United States Supreme Court evaluated whether the standard that we use in Texas for

Petetan Concurring – 2 determining intellectual disability–set out in Ex parte Briseno 2 – violates the Eighth Amendment. Before this appeal was final, the United States Supreme Court handed down Moore v. Texas.3 Moore clearly invalidates portions of our Briseno standard–namely the reliance upon non-clinical “factors” to evaluate adaptive functioning–and calls other aspects of our standard into question.4 If all Moore had done was simply prohibit the use of “the Briseno factors” when determining intellectual disability I would agree to a denial of rehearing. However, Moore appears to go further than that, as noted in Chief Justice Roberts’ dissent.5 We seem to have recognized as much when we agreed to briefing on the issue of intellectual disability, rather than simply granting Moore the habeas relief

Petetan Concurring – 3 he seeks.6 Though it is unusual to grant rehearing on our own motion, these are unique circumstances. It is more prudent to address these issues at this juncture given that Appellant specifically asked us to re- work our standard for determining intellectual disability, Moore now requires us to do just that, Moore was decided before Appellant’s appeal became final, and Appellant did not have the benefit of Moore on original submission.

With these thoughts I concur.

Filed: October 18, 2017 Do Not Publish