IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
FROM CAUSE NO. CR-0385-95-G(2) IN THE 370TH DISTRICT COURT
HIDALGO COUNTY
O R D E R
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.
In November 1996, 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. Martinez v. State, No. AP-72,704 (Tex. Crim. App. June 30, 1999)(not designated for publication). Applicant filed his initial post-conviction application for writ of habeas corpus in the convicting court on February 17, 1999. After filing and setting the case, this Court ultimately denied applicant relief. Ex parte Martinez, 195 S.W.3d 713 (Tex Crim. App. 2006). Applicant's subsequent application was received in this Court on September 28, 2007.
Applicant presents two allegations in his application. In his first claim, applicant asserts that his execution would violate the United States Supreme Court's opinion in Atkins v. Virginia, 536 U.S. 304 (2002), holding that the Eighth Amendment prohibits the execution of the mentally retarded. In his second claim, applicant asserts that his execution would violate his due process rights unless he is afforded a full and fair hearing on his claim of mental retardation with access to the tools necessary to establish his claim.
We have reviewed the application and find that the allegations satisfy the requirements of Article 11.071 § 5. Accordingly, we remand the application to the trial court for a live hearing on applicant's claims.
IT IS SO ORDERED THIS THE 12TH DAY OF MARCH, 2008.
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