Davis, Brian Edward

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 40,339-05 EX PARTE BRIAN EDWARD DAVIS

ON APPLICATION FOR WRIT OF HABEAS CORPUS

CAUSE NO. 616522-E IN THE 230^TH DISTRICT COURT

HARRIS COUNTY

Per Curiam.

O R D E R

This is a post conviction application for writ of habeas corpus filed pursuant to the provisions of Article 11.071 of the Texas Code of Criminal Procedure.

On June 11, 1992, the jury found applicant guilty of the offense of capital murder. The jury then answered the special issues submitted pursuant to Article 37.071, Tex. Code Crim. Proc., and the trial court, accordingly, set punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Davis v. State, 961 S.W.2d 156 (Tex. Crim. App. 1998)(published in part).

Applicant presented two allegations in his application in which he challenged the validity of his conviction and resulting sentence. His first claim, that he is mentally retarded and therefore, his execution is constitutionally prohibited by Atkins v. Virginia, 536 U.S. 304 (2002), satisfied the requirements of Art. 11.071, § 5, and was remanded to the trial court for consideration of that issue. The remaining allegation was dismissed by written order of this Court on August 9, 2002. On remand for consideration of applicant's first allegation, the trial judge entered findings of fact and conclusions of law, and recommended relief be denied.

This Court has reviewed the record with respect to the allegation made by applicant. We adopt the trial judge's findings and conclusions. Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004). Based upon the trial court's findings and conclusions and our own review, the relief sought is denied.

IT IS SO ORDERED THIS THE 29^th DAY OF MARCH, 2006.

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