Opinion
No. WR-62,552-02
Delivered: May 23, 2007. DO NOT PUBLISH.
On Application for Writ of Habeas Corpus From Cause No. 8759-B In The 63RD Judicial District Court, Val Verde 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, § 5(a)(3). On September 20, 2000, a jury found applicant guilty of the offense of capital murder. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071, and the trial court, accordingly, set applicant's punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Sells v. State, 121 S.W.3d 748 (Tex.Crim.App. 2003). Applicant filed his initial post-conviction application for writ of habeas corpus in the convicting court on January 30, 2003. This Court denied applicant relief. Ex parte Sells, No. WR-62,552-01 (Tex Crim. App. Aug. 31, 2005) (not designated for publication). Applicant's subsequent application was received in this Court on September 26, 2006. In Atkins v. Virginia, 536 U.S. 304 (2002), the United States Supreme Court held that the constitution prohibits executing persons who suffer from mental retardation. In the only claim raised in his subsequent application, applicant asserts that he is mentally retarded and cannot legally be executed. Because the Atkins decision was handed down prior to the time applicant filed his initial habeas application, he should have raised the issue of mental retardation in that application. Because he did not, he can no longer avail himself of the lower preponderance standard in attempting to make a prima facie case. See Art. 11.071 § 5(a)(1). Instead, he must make "a threshold showing of evidence that would be at least sufficient to support an ultimate conclusion, by clear and convincing evidence," that he is mentally retarded. Ex parte Blue, S.W.3d, No. AP-75,254, slip op. at 20 (Tex.Crim.App. Mar. 7, 2007) (emphasis in original); see also Art. 11.071 § 5(a)(3). Applicant fails to make this showing. Applicant's subsequent application is dismissed. Id. IT IS SO ORDERED THIS THE 23RD DAY OF MAY, 2007.