           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                      WR-55,161-02



                       EX PARTE ERIC DEWAYNE CATHEY



            ON APPLICATION FOR WRIT OF HABEAS CORPUS
        CAUSE NO. 713189-B IN THE 176th JUDICIAL DISTRICT COURT
                           OF HARRIS COUNTY



       Per curiam.

                                        ORDER

       This is a subsequent application for writ of habeas corpus filed pursuant to the

provisions of Texas Code of Criminal Procedure Article 11.071.

       In March 1997, a jury convicted Applicant of the offense of capital murder. The

jury answered the special issues submitted pursuant to Code of Criminal Procedure article

37.071, and the trial court, accordingly, set punishment at death. This Court affirmed

Applicant’s conviction and sentence on direct appeal. Cathey v. State, 992 S.W.2d 460
                                                                                     Cathey - 2

(Tex. Crim. App. 1999). The Court denied Applicant’s initial post-conviction application

for writ of habeas corpus. Ex parte Cathey, No. WR-55,161-01 (Tex. Crim. App. April 2,

2003)(not designated for publication). Applicant later filed a subsequent state habeas

application, in which he alleged that he is intellectually disabled 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 2014. Ex parte Cathey, 451 S.W.3d

1 (Tex. Crim. App. 2014). In March 2015, we declined Applicant’s suggestion to

reconsider our disposition of that application.

       The United States Supreme Court thereafter issued its opinion in Moore v. Texas,

137 S. Ct. 1039 (2017). In Moore v. Texas, the Supreme Court rejected the use of the

Briseno1 factors to analyze adaptive deficits because they “creat[e] an unacceptable risk

that persons with intellectual disability will be executed.” Id. at 1051. The Supreme

Court held that this Court improperly “fastened its intellectual-disability determination to

‘the AAMR’s 1992 definition of intellectual disability that [it] adopted in Briseno for

Atkins claims presented in Texas death-penalty cases.”2 Id. at 1053.

       The Fifth Circuit authorized Applicant to file a successive habeas petition in

federal court. In re Cathey, 857 F.3d 221 (5th Cir. 2017). The federal district court stayed

its proceedings to give “the Texas courts an opportunity to decide whether Moore requires


       1
           Ex parte Briseno, 135 S.W.3d 1, 8 (Tex. Crim. App. 2004).
       2
         See American Association on Mental Retardation (AAMR), Mental Retardation:
Definition, Classification, and Systems of Supports (9th ed. 1992).
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reconsideration of [Applicant’s] Atkins claim.” Cathey v. Davis, No. H-15-2883 (S.D.

Tex. July 28, 2017). Applicant has now submitted the instant “suggestion for [this] court

to reconsider [this] case on its own initiative.”

       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 circumstances”). In light of the 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 consider all of the evidence in light

of the Moore v. Texas opinion and make a new recommendation to this Court on the issue

of intellectual disability. If the habeas court deems it necessary, then it may receive

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

determines is germane to the question of intellectual disability. The habeas court shall

then make findings of fact and conclusions of law regarding the issue of intellectual

disability.

       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
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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 7 TH DAY OF NOVEMBER, 2018.

Do Not Publish
