Bell, Ex Parte Walter Jr. ( 2004 )

  IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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AP- 75,038

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Ex parte WALTER BELL, JR., Applicant

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ON APPLICATION FOR WRIT OF HABEAS CORPUS

FROM JEFFERSON COUNTY

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Keller, P.J., filed a concurring and dissenting opinion in which MEYERS, KEASLER, and HERVEY, JJ., joined.

CONCURRING AND DISSENTING OPINION

   Amicus curiae suggests that a permanent stay of execution - not reformation to a life sentence - is the appropriate remedy for a mentally retarded death-sentenced defendant. It is pointed out that a permanent stay would deny such an inmate the chance of parole, as well as allow authorities to keep him on death row. The preclusion from execution mandated by Atkins v. Virginia ⁽¹⁾ does not, it is argued, negate the fact that a jury has found applicant to be a future danger to society. The nature of the relief that this Court decides to grant to such inmates will have a bearing on the safety of general-population inmates, prison staff and, if parole is granted, the public. Reformation of applicant's sentence to life in this case renders him immediately eligible for parole. ⁽²⁾ This is not what the jury had in mind for applicant or, apparently, what the Legislature had in mind for men like applicant. Atkins forces us to intrude upon the will of the people of Texas, as expressed by our Legislature, and upon the will of the jury. ⁽³⁾ If there is an option that more closely adheres to those intentions, we should at least consider it.

I am uncertain about the merits of the amicus position, but I believe we ought to address it. I would order briefing and argument on the issue of what is the appropriate relief to be granted under Atkins.

I agree that applicant may not be executed, and I concur in the Court's opinion to that extent. But before deciding whether to reform applicant's sentence to life, I would first give full consideration to the alternative remedy suggested by amicus curiae. To the Court's decision to reform applicant's sentence to life imprisonment without such a full consideration, I respectfully dissent.

KELLER, Presiding Judge

Date filed: November 10, 2004

Publish

1. 536 U.S. 304 (2002).

2. He was originally convicted in 1975 for a capital murder committed in 1974. See TEX. CODE CRIM. PROC., Art. 42.12 §15(a)(1967)(life sentenced prisoner eligible for parole after twenty years).

3. But see H.B. 236, 77^th Leg., R.S. (2001). In the 2001 legislative session, a bill was passed that prohibited execution of the mentally retarded. It was vetoed by the Governor and no such legislation has been enacted in the succeeding sessions.