                   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




       1
          Appellant specifically asked us to re-work our standard for determ ining intellectual
disability in light of Hall v. Florida, and we declined to do so.
                                                                  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




       2
           135 S.W .3d 1 (Tex. Crim . App. 2004).

       3
           137 S.Ct. 1039 (2017).

       4
          Id. at 1053 (Roberts, C.J., dissenting)(observing that the United States Suprem e
Court unanim ously agreed that the Briseno factors violated the Eighth Am endm ent); see
also id. at 1049 (m aj. opinion) (noting that our evaluation of IQ scores is irreconcilable with
Hall v. Florida because it allows for factors unique to the individual to narrow the test-
specific standard-error range); see also id. at 1050 (m aj. opinion) (noting that the m edical
com m unity focuses adaptive-functioning inquiry on adaptive deficits rather than adaptive
strengths and that we overem phasized the defendant’s adaptive strengths).

       5
         Id. at 1059-61 (Roberts, C.J., dissenting) (criticizing the Moore m ajority for calling
into question a reviewing court’s ability to draw reasonable inferences about IQ scores); see
also In re Cathey, 857 F.3d 221, 235 (5th Cir. 2017) (recognizing that the United States
Suprem e Court had invalidated Briseno, but “did not announce what should replace the
Briseno factors”).
                                                             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




      6
         Ex parte Moore, No. W R-13,374-05 (Tex. Crim . App. June 14, 2017)(not designated
for publication).
