Opinion
No. WR-60,478-01
February 9, 2005. DO NOT PUBLISH.
Habeas Corpus Application from Harris County.
ORDER
This is a subsequent application for writ of habeas corpus seeking relief under the provisions of Texas Code of Criminal Procedure, Article 11.071 § 5. On April 18, 1994, a jury, having convicted applicant of capital murder, answered the special issues in such a manner that the trial court imposed a sentence of death. This Court affirmed the conviction and sentence on direct appeal. Eldridge v. State, 940 S.W.2d 646 (Tex.Crim.App. 1996). On March 30, 1998, applicant filed his initial application for writ of habeas corpus, which is still pending in the convicting court. On June 20, 2003, applicant filed this subsequent application referring to it as "Supplemental Writ of Habeas Corpus." The convicting court forwarded this subsequent application to this Court on July 13, 2004. Article 11.071 In June 2002, the Supreme Court of the United States delivered its opinion in Atkins v. Virginia, 122 S.Ct 2242 (2002), announcing that the execution of some mentally retarded defendants offends the constitution. Atkins created a legal basis for a claim which was not available at the time of applicant's initial application for habeas relief. This Court has established the threshold to present a prima facie case for consideration of an " Atkins claim" in a subsequent application for writ of habeas corpus under Article 11.071 § 5(a). Ex parte Briseno, 135 S.W.3d 1 (Tex.Crim.App. 2004). We have reviewed the facts applicant presents in his " Atkins claim" and find that, even if they were true, he has not established a prima facie claim as set forth by this Court in Briseno. Having failed to satisfy the requirements of Briseno and Article 11.071, § 5, for consideration of this subsequent claim, applicant's subsequent application is dismissed, and no action will be taken to consider the merits of the claim. IT IS SO ORDERED.