Opinion
No. 40,339-05
Delivered: March 29, 2006. DO NOT PUBLISH.
On Application for Writ of Habeas Corpus, Cause No. 616522-E in the 230th District Court, Harris County.
ORDER
This is a post conviction application for writ of habeas corpus filed pursuant to the provisions of Article 11.071 of the Texas Code of Criminal Procedure. On June 11, 1992, the jury found applicant guilty of the offense of capital murder. The jury then answered the special issues submitted pursuant to Article 37.071, Tex. Code Crim. Proc., and the trial court, accordingly, set punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Davis v. State, 961 S.W.2d 156 (Tex.Crim.App. 1998) (published in part). Applicant presented two allegations in his application in which he challenged the validity of his conviction and resulting sentence. His first claim, that he is mentally retarded and therefore, his execution is constitutionally prohibited by Atkins v. Virginia, 536 U.S. 304 (2002), satisfied the requirements of Art. 11.071, § 5, and was remanded to the trial court for consideration of that issue. The remaining allegation was dismissed by written order of this Court on August 9, 2002. On remand for consideration of applicant's first allegation, the trial judge entered findings of fact and conclusions of law, and recommended relief be denied. This Court has reviewed the record with respect to the allegation made by applicant. We adopt the trial judge's findings and conclusions. Ex parte Briseno, 135 S.W.3d 1 (Tex.Crim.App. 2004). Based upon the trial court's findings and conclusions and our own review, the relief sought is denied. IT IS SO ORDERED.