Opinion
No. WR-50,791-02
June 13, 2007. DO NOT PUBLISH.
On Application For Writ Of Habeas Corpus In cause no. 643410-b in the 180th district court Harris County.
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 November 1992, 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 in favor of the State, and the trial court, accordingly, set punishment at death. This Court affirmed the conviction and sentence on direct appeal. Matamoros v. State, 901 S.W.2d 470 (Tex.Crim.App. 1995). On April 23, 1997, Applicant filed his initial article 11.071 application for writ of habeas corpus with the convicting court. Upon the trial court's recommendation, this Court ultimately denied Applicant relief on December 5, 2001. Ex parte Matamoros, No. 50,791-01 (Tex.Crim.App. delivered Dec. 5, 2001). Then on June 17, 2003, Applicant filed a subsequent habeas writ application in the trial court asserting that he is mentally retarded and cannot be executed after the Supreme Court's decision in Atkins v. Virginia, 536 U.S. 304 (2002), which restricts the state's power to execute a mentally retarded offender. This Court received the application from the trial court on October 27, 2003, and on December 10, 2003, this Court remanded the allegation to the trial court to address the merits of the claim. The trial court held an evidentiary hearing, entered written findings of fact and conclusions of law, and returned the case to this Court. It was received here after remand on January 30, 2007. This Court has reviewed the record. We adopt the trial court's findings and conclusions with two exception: (1) This Court rejects the conclusion that applicant fails to meet the first criterion for mental retardation, i.e., that the applicant fails to show by a preponderance of the evidence that he has significant sub-average general intellectual functioning; and (2) This Court does not adopt the trial court's findings and conclusions regarding the effect bilingualism may have had on either applicant's general intellectual functioning or applicant's adaptive functioning. Even so, based upon the trial court's findings and conclusions and our own review, we hold that applicant fails to demonstrate by a preponderance of the evidence that he has sufficient deficiencies in adaptive functioning for a diagnosis of mental retardation or that there was an onset of mental retardation during applicant's developmental period. Because Applicant fails to establish two of the three required prongs in demonstrating mental retardation, the relief sought is denied.