Full opinion text
BY THE COURT: CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT TO THE COURT OF CRIMINAL APPEALS OF TEXAS PURSUANT TO RULE 214 TEXAS RULES OF APPELLATE PROCEDURE TO THE TEXAS COURT OF CRIMINAL APPEALS AND THE HONORABLE JUSTICES THEREOF: The United States Court of Appeals for the Fifth Circuit on remand from the United States Supreme Court has decided that this case presents a question of law that may be determinative of this case, for which there is no controlling precedent in the decisions of the Court of Criminal Appeals. The question is whether petitioner Selvage’s claim under Penry v. Lynaugh, 492 U.S. -, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), is presently procedurally barred under Texas law. We certify this question pursuant to Rule 214, Texas Rules of Appellate Procedure. The question was framed by the United States Supreme Court in its per curiam opinion filed February 21, 1990, — U.S. -, 110 S.Ct. 974, 108 L.Ed.2d 93. The procedural history of this case is set out in Selvage v. State, 680 S.W.2d 17 (Tex.Crim.App.1984); Selvage v. Lynaugh, 823 F.2d 845 (5th Cir.1987), cert. denied, 484 U.S. 933, 108 S.Ct. 309, 98 L.Ed.2d 268 (1987); Selvage v. Lynaugh, 842 F.2d 89 (5th Cir.1988), stay granted pending cert., 485 U.S. 983, 108 S.Ct. 1283, 99 L.Ed.2d 494 (1988), cert. granted in part, (Oct. 10, 1989), — U.S. —, 110 S.Ct. 231, 107 L.Ed.2d 182 (1989). The names and addresses of counsel for each party are set out in the appendix. APPENDIX A Jim Mattox, Attorney General Robert S. Walt, Assistant Attorney General Capitol Station Austin, Texas 78711 David P. Cunningham, Esq. Attorney for Petitioner 1927 Norfolk Houston, Texas 77098 Julius L. Chambers, Esq. NAACP Legal Defense and Educational Fund, Inc. 99 Hudson Street New York, New York 10013 George H. Kendall, Esq. 31 Elm Street, Suite 236 Springfield, Massachusetts 01103