Robertson, Ex Parte Mark Allen

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS



NO. AP-74,720

EX PARTE MARK ALLEN ROBERTSON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM DALLAS COUNTY

Meyers, J., delivered the opinion of the Court, in which Keller, P.J., and Price, Womack, Johnson, Keasler, Hervey, and Holcomb, JJ., joined. Cochran, J., did not participate.

O P I N I O N



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. (1)

Applicant was convicted of the offense of capital murder. The jury returned answers to the special issues submitted under Article 37.071, and the trial court, accordingly, set punishment at death. Applicant's conviction was affirmed on direct appeal. Robertson v. State, 871 S.W.2d 701 (Tex. Crim. App. 1993). Applicant filed his initial habeas corpus petition in 1997 and this Court denied relief.

In the instant cause, Applicant presents a single allegation challenging the validity of this conviction and resulting sentence. Specifically, Applicant argues that the nullification instruction impermissibly limited the jury's ability to consider and give effect to mitigating evidence presented during the trial. We granted Applicant's stay of execution, and this cause was filed and set, awaiting the outcome of a similar case pending before this Court, Ex Parte Laroyce Lathair Smith, 132 S.W.3d 407 (Tex. Crim. App. 2004). However, on June 24, 2004, the United States Supreme Court decided Tennard v. Dretke, 124 S. Ct. 2562, and specifically disapproved of the test used by the Fifth Circuit in Penry claims; the same test used in the Fifth Circuit decision in the case before us, Robertson v. Cockrell, 325 F.3d 243 (5th Cir. 2003), and also applied by this Court in Ex Parte Smith. As a result, the Supreme Court reversed our decision in Smith v. Texas, 125 S. Ct. 400 (November 15, 2004), holding that this Court assessed the claim under an improper legal standard. Accordingly, the legal basis for Applicant's claim was unavailable on the date he filed the previous application, and he meets the requirements of Article 11.071 §5(a)(1). The cause is remanded to the trial court for consideration of Applicant's claim. See Art. 11.071 §6(b), V.A.C.C.P.

Meyers, J.





Delivered: March 16, 2005

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1. All references to Articles refer to the Texas Code of Criminal Procedure.