Opinion
No. WR-41,121-02
Delivered: June 27, 2007. DO NOT PUBLISH.
On Application for Writ Of Habeas Corpus appeal from Cause No. 511112 In The 185th District Court from Harris County.
ORDER
This is a subsequent application for writ of habeas corpus filed pursuant to the provisions of Article 11.071, Section 5 of the Texas Code of Criminal Procedure. On November 10, 1988, Applicant was convicted of the offense of capital murder. The jury answered the special issues submitted under Article 37.071 of the Texas Code of Criminal Procedure, and the trial court, accordingly, set punishment at death. The conviction was affirmed on direct appeal. Butler v. State, 872 S.W.2d 227 (Tex.Crim.App. 1994). Applicant's initial writ, Ex parte Butler, WR-41,121-01, was denied on April 28, 1999. Applicant presents ten allegations in his application. His second claim, that his execution would violate the Eighth Amendment's prohibition against the execution of the mentally retarded, satisfies the requirements of Article 11.071, Section 5 of the Texas Code of Criminal Procedure, and was remanded to the trial court for consideration of that issue. The trial court held a hearing and made findings of fact and conclusions of law recommending that this application be denied because Applicant has failed to show that he is mentally retarded. We have reviewed the record of the hearing and the trial court's findings of fact and conclusions of law and agree this application should be denied. IT IS SO ORDERED THIS THE 27TH DAY OF JUNE, 2007.