Ex Parte Herrera

819 S.W.2d 528, 1991 WL 87606

• Court: Court of Criminal Appeals of Texas
• Decided: September 18, 1991
• Docket: 71171
• Status: Published

Opinions

OPINION

PER CURIAM.

This is a post conviction application for writ of habeas corpus filed pursuant to the provisions of Article 11.07, V.A.C.C.P.

On January 20, 1982, applicant was found guilty of the offense of capital murder. After the jury returned affirmative answers to the special issues, punishment was assessed at death. This Court affirmed applicant’s conviction on direct appeal. Herrera v. State, 682 S.W.2d 313 (Tex.Cr.App.1984).

On January 17, 1991, this Court ordered the instant cause filed and set on applicant’s third allegation. In that allegation, it is urged the jury in applicant’s capital murder trial was precluded from considering evidence which “counseled in favor” of a sentence less than death, in violation of applicant’s Sixth, Eighth and Fourteenth Amendment rights. The trial court has entered findings of fact and conclusions of law and recommended the relief sought be denied.

This Court has reviewed the record with respect to the allegation presented by applicant and finds that the findings and conclusions entered by the trial court are supported by the record and upon such basis the relief sought is denied.¹

1 . We specifically decline to adopt conclusion of law No. 6 entered by the trial court concerning applicant's alleged procedural default. See Black v. State, 816 S.W.2d 350 (Tex.Cr.App. 1991). Applicant’s remaining seven allegations are denied on the basis of the findings and conclusions entered by the trial court.