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Click here for the full text of this decision FACTS:Jose Angel Moreno was born with a deformity to his left ear. Apparently abandoned by his birth parents, he was adopted as an infant by Elias and Carmen Moreno through a Catholic adoption agency. Moreno grew up in a small house that he shared with his parents and his grandmother. During the first seven years of his life, Moreno underwent five surgeries to try to correct his deformity. Neighborhood boys taunted Moreno because of his deformity, and his mother would console him. When Moreno was still a small child, both his mother and his grandmother became very ill. His father was compelled to take a second job in order to support his family and pay medical expenses of about $84,000. At times Moreno was apparently sent to live with relatives, necessitating frequent changes in the schools he attended. When Moreno was about 15 years old, his mother died, an event that he “took very hard.” He dropped out of school and worked a number of menial jobs while living in his father’s house, relatively unsupervised. Moreno was only 18 years old at the time he committed a capital offense. Various family friends testified that Moreno “has been a very good boy,” was “polite,” “respectful towards everyone,” “sincere” in his religious devotion and capable of being rehabilitated. A chaplain at the Bexar County jail who had counseled with Moreno testified that he did not impress her as “a cold-blooded killer,” but more like “a frightened child.” He expressed “a general remorse for the situation” to her. Moreno filed his initial state application for writ of habeas corpus challenging his conviction for capital murder and death sentence on Jan. 12, 1996. Moreno had been convicted in January 1987; the CCA affirmed his conviction in 1993. In ground for relief No. 10 of his initial writ application, Moreno argued that the punishment charge submitted to the jury had been flawed under the Eighth Amendment, because it did not empower the jury to give effect to certain mitigating evidence he had offered at the punishment phase of trial. In making this argument, Moreno relied principally upon the U.S. Supreme Court’s 1989 opinion in Penry v. Lynaugh (Penry I). Specifically, Moreno argued: “The mitigating evidence presented in the instant case is basically that of remorse, youth, . . . good character, and troubled childhood. [Moreno] requested an instruction on the consideration of mitigating evidence beyond the statutory special issues. These instructions would have given the jury a vehicle for expressing its”reasoned moral response’ to mitigating evidence, yet [the instruction was] denied by the trial court.” The convicting court recommended that the CCA reject this claim on the merits, because the jury adequately considered the particular mitigating evidence that Moreno had presented within the ambit of the statutory special issues, which in 1987 did not include the particular mitigation instruction currently found in Texas Code of Criminal Procedure Art. 37.071, �2(e)(1). The trial court stated: “The fact that the applicant was viewed, by his family and friends, as a good boy who could be rehabilitated was not beyond the scope of the issue regarding future dangerousness, [and] the requested charge was properly refused.” In an unpublished written order dated Sept. 13, 2000, the CCA found that the record supported the convicting court’s findings of fact and conclusions of law, including its conclusion with respect to ground for relief No. 10. On that basis, the CCA denied relief. Moreno filed his initial federal petition for writ of habeas corpus on June 29, 2001. The federal district court subsequently granted Moreno’s motion to abate his federal petition so that he could return to state court to exhaust a newly recognized claim that he could not be executed consistent with the Eighth Amendment, because he is mentally retarded under the U.S. Supreme Court’s 2002 decision in Atkins v. Virginia. The CCA dismissed Moreno’s first subsequent state writ raising the Atkins claim, because he failed to make out a prima facie claim of mental retardation. When Moreno returned to federal court, the district court denied relief on all of the claims raised in his federal habeas petition in a memorandum opinion and order issued on March 17, 2005. Moreno did not carry his initial-writ Penry claim forward into his federal petition. The 5th U.S. Circuit Court of Appeals affirmed the district court’s judgment, and in January 2007 the U.S. Supreme Court denied Moreno’s petition for certiorari. In April 2007, the Supreme Court issued opinions in two companion cases, Abdul-Kabir v. Quarterman and Brewer v. Quarterman. In those two opinions, the Supreme Court revisited Penry I and its progeny, and stated that a jury must be empowered by the trial court’s instructions to give “meaningful effect” to all mitigating evidence that a capital defendant introduces at the punishment phase of his trial. In light of these opinions, Moreno filed a second subsequent application for writ of habeas corpus in state court, arguing that he satisfied the criteria for filing a subsequent writ as enumerated in �5 of Art. 11.071 of the Code of Criminal Procedure. Equally divided as to how to dispose of Moreno’s second subsequent writ application (four votes to allow Moreno to proceed versus four votes to dismiss), the CCA issued an order on May 9, 2007, announcing that it declined to take any action. The next day, May 10, 2007, the date Moreno was scheduled to be executed, he filed a “suggestion” that the CCA reconsider ground No. 10 of his initial habeas application on its own initiative, pursuant to Rule 79.2(d) of the Texas Rules of Appellate Procedure. In an unpublished order issued that same day, the CCA exercised its authority to reconsider ground for relief No. 10, and stayed his impending execution. The CCA issued an additional order in the case on Aug. 22, 2007, directing the parties to brief several questions. After briefing from the parties, the cause was submitted to the CCA on Nov. 7, 2007. HOLDING:On its own initiative, the CCA granted habeas relief on a previously rejected claim that Moreno had raised in an initial postconviction application for writ of habeas corpus. The CCA first noted that the convicting court held that Moreno’s mitigating evidence was adequately encompassed within the future-dangerousness special issue. According to the CCA, however, this meant that the convicting court apparently took into account only Moreno’s evidence of good character and remorse but perhaps not the evidence of Moreno’s troubled childhood. In the recent opinions in Abdul-Kabir and Brewer, the CCA stated that the U.S. Supreme Court “has now made it clear that our resolution of Moreno’s tenth ground for relief in his initial writ application, accepting as we did the convicting court’s recommended conclusion of law, was incorrect. At least with respect to his evidence of a troubled childhood, Moreno was entitled to such a separate jury instruction.” The CCA stated that it could “no longer maintain that evidence of a troubled childhood is adequately encompassed within the statutory special issues. Both Abdul-Kabir and (especially) Brewer expressly state that Supreme Court precedent has long rejected the notion that a jury can meaningfully express its reasoned moral response to evidence of a troubled or disruptive childhood within the narrow confines of the special issues.” A capital jury, the CCA stated, must be given greater leeway to exercise its reasoned moral response under the Eighth Amendment. In light of the Supreme Court’s most recent pronouncements, the CCA stated, it now appears that the CCA’s rejection of the 10th ground for relief in Moreno’s initial writ application was so plainly incorrect under then-extant Supreme Court precedents as to have been “objectively unreasonable,” even as of September of 2000, when it denied Moreno relief. The CCA stated that Moreno did not “slumber on his rights.” He objected at trial and raised his claim timely in his initial application for writ of habeas corpus. As soon as it became clear to him that the CCA’s original disposition was so plainly incorrect that today it would undoubtedly be considered objectively unreasonable by the U.S. Supreme Court, Moreno renewed his claim, first in an attempted subsequent writ application, and then, when the CCA was unable to muster a majority to take action on that, by way of his suggestion that the CCA reconsider the issue from his initial writ application on its own initiative. The CCA found it appropriate under extraordinary circumstances to exercise its authority under Rule 79.2(d) to reconsider its original disposition of Moreno’s Penry I claim. Thus, the CCA held that, because the evidence Moreno proffered at the punishment phase of his capital murder trial with respect to his troubled childhood could not be given meaningful effect within the context of the statutory special issues, the trial court erred in failing to give a separate jury instruction that would empower the jury to assess a life sentence on the basis of such mitigating evidence, notwithstanding its answers to the special issues. Accordingly, the CCA remanded Moreno to the trial court for a new punishment hearing. OPINION:Price, J., delivered the opinion of the Court in which Keller, P.J., and Womack, Johnson, Keasler, Holcomb, and Cochran, JJ., joined. Meyers and Hervey, JJ., did not participate. CONCURRENCE:Keller, P.J., filed a concurring opinion. “Reconsidering an application for writ of habeas corpus after a significant passage of time should be a rare event, and should not become a means of circumventing the statutes. At a minimum, two conditions should be present. First, the reconsideration must indeed involve a claim that was originally raised in the application. Second, an indisputable mistake of fact or law that the reconsideration seeks to rectify must have been made by this Court.”

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