Johnson, Derrick Lamone

• Court: Court of Criminal Appeals of Texas
• Decided: April 29, 2009
• Docket: WR-56,947-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-56,947-02 EX PARTE DERRICK LAMONE JOHNSON

ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS

AND MOTION FOR STAY OF EXECUTION FROM CAUSE

NO. W99-01708-S IN THE 282^ND JUDICIAL DISTRICT COURT

DALLAS COUNTY

Per Curiam. Price, J., filed a statement dissenting to the dismissal of the application in which Womack and Holcomb, joined.

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, and a motion for stay of execution.

In November 1999, 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. Johnson v. State, 68 S.W.3d 644 (Tex. Crim. App. 2002). Applicant filed his initial post-conviction application for writ of habeas corpus in the convicting court on October 22, 2001. This Court denied applicant relief. Ex parte Johnson, No. WR-56,947-01 (Tex Crim. App. Oct. 8, 2003)(not designated for publication). Applicant's subsequent application was received in this Court on April 28, 2009.

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 due process unless he is given a full and fair hearing on his mental retardation claim.

We have reviewed the application and find that applicant has failed to make a prima facie case of mental retardation. Otherwise, applicant's claims fail to meet the dictates of Article 11.071, § 5. Accordingly, we dismiss his application and deny his motion to stay his execution.

IT IS SO ORDERED THIS THE 29^th DAY OF APRIL, 2009.

Do Not Publish