IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
APPLICATION FOR A WRIT OF HABEAS CORPUS
FROM HARRIS COUNTY
ORDER
This is a subsequent application for a writ of habeas corpus filed pursuant to Tex. Code Crim. Proc. art. 11.071.
On October 14, 1996, applicant was convicted of the offense of capital murder. Four days later, the jury answered the special issues submitted pursuant to Article 37.071, Tex. Code Crim. Proc., and the trial court, in accordance with the jury's answers, sentenced applicant to death. This Court affirmed applicant's conviction and death sentence on direct appeal. Plata v. State, No. 72,639 (Tex. Crim. App., July 8, 1998) (not designated for publication). This Court denied applicant's original application for a writ of habeas corpus on October 4, 2000. Ex parte Daniel Angel Plata, No. 46,749-01 (Tex. Crim. App. 2000). In this subsequent writ, applicant brings two claims, including an allegation of mental retardation under Atkins v. Virginia, 536 U.S. 304 (2002). On September 15, 2004, we dismissed without prejudice applicant's claims because we had previously been informed by both parties that applicant's federal habeas writ appeal was pending in the Fifth Circuit. On September 17, 2004, applicant's counsel informed this Court that, in fact, on August 16, 2004, the Fifth Circuit had stayed its consideration of his federal writ so that Texas state courts could consider his Atkins claim. We were also informed that on September 9, 2004, the Federal District Court for the Southern District of Texas had entered an order staying applicant's case pending a final decision by this Court on applicant's subsequent writ application. It would have been helpful had we been timely advised of recent developments that affect our jurisdiction.
Nonetheless, on reconsideration, we rescind our order of September 15, 2004 and substitute this order in its stead.
We have reviewed the present application and find that the first allegation, raising an Atkins claim, satisfies the requirements of Article 11.071, § 5(a), Tex. Code Crim. Proc. The second allegation does not satisfy an exception and is dismissed as an abuse of the writ. Accordingly, we find that the requirements for consideration of a subsequent application have been met and the cause is remanded to the trial court for consideration of the first allegation.
IT IS SO ORDERED THIS THE 29th DAY OF SEPTEMBER, 2004.
Do Not Publish