WR-40,347-02
November 23, 2005. DO NOT PUBLISH.
Application for Writ of Habeas Corpus in Cause Number W91-21511-I from the Criminal District Court #2 of Dallas County.
PER CURIAM. JOHNSON, J., joined by PRICE and COCHRAN, JJ., concurs in the denial of relief.
PER CURIAM.
This is a subsequent application for writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure, Article 11.071. On March 20, 1992, a jury found applicant guilty of the offense of capital murder. After the jury answered the special issues submitted under Texas Code of Criminal Procedure, Article 37.071, the trial court assessed punishment at death. This Court affirmed applicant's conviction on direct appeal. Hines v. State, No. 71,442 (Tex.Crim.App. May 10, 1995). Applicant filed his original writ of habeas corpus on April 1, 1997; the application was denied by this Court on February 24, 1999. On December 3, 2003, applicant filed this second application for writ of habeas corpus alleging he is mentally retarded. On
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December 9, 2003, this Court found that the claim in this subsequent application met the requirements for consideration under Article 11.071, Section 5 and the application was remanded to the convicting court for resolution of the claim. The convicting court has entered extensive findings of fact and conclusions of law. The judge of the convicting court entered these findings after reviewing the evidence presented by affidavit in the application, the response of the State and the record from trial. While the habeas judge did not hear the testimony at trial and did not conduct a evidentiary hearing, we review with deference his findings of fact unless they are clearly erroneous. See Manzi v. State, 88 S.W.3d 240, 242-44 (Tex.Crim.App. 2002). There is conflicting evidence, in the form of expert witness affidavits, as to whether applicant suffers from mental retardation. The trial court reviewed not only the opinions of the experts, but the evidence upon which the experts based their opinions to evaluate the level of applicant's intellectual functioning. The trial court also assessed the evidence of applicant's adaptive behavioral functioning according to the guidance from this Court in Ex parte Briseno, 135 S.W.3d 1, 8-9 (Tex.Crim.App. 2004). While we have said that the better practice is to conduct a live hearing in cases such as this, see Ex parte Simpson, 136 S.W.3d 630 (Tex.Crim.App. 2004), the evidence before the trial court was extensive and we did not specify that a live hearing was necessary when we remanded the case. HINES -3-
This Court has reviewed the record. The findings and conclusions of the trial court, that applicant is not mentally retarded, are supported by the record. We adopt the findings and conclusions of the trial court and upon such basis the relief sought by applicant is denied. IT IS SO ORDERED.