Pierce, Anthony Leroy

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-15,859-04 EX PARTE ANTHONY LEROY PIERCE

ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE

NO. 267685 IN THE 174^TH DISTRICT COURT

HARRIS COUNTY

Per Curiam. Meyers, Price, and Holcomb, JJ., would grant.

O R D E R

This is an application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure article 11.071.

A jury convicted Applicant of the offense of capital murder. The jury answered the special issues submitted pursuant to Code of Criminal Procedure article 37.071, and the trial court, accordingly, set punishment at death. This Court reversed the conviction. Pierce v. State, 604 S.W.2d 185 (Tex. Crim. App. 1980). On retrial, a jury again convicted Applicant of capital murder. The second jury answered the special issues, and the trial court, accordingly, set punishment at death. This Court again reversed. Pierce v. State, 696 S.W.2d 899 (Tex. Crim. App. 1985). Applicant was convicted and sentenced to death a third time. This Court affirmed that conviction. Pierce v. State, 777 S.W.2d 399 (Tex. Crim. App. 1989). Applicant's initial application was denied by this Court. Ex parte Pierce, No. WR-15,859-03 (Tex. Crim. App. Sept. 19, 2001)(not designated for publication).

In this first subsequent application, Applicant presented two allegations. In his first claim, Applicant asserted 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 asserted that the death sentence violated his Sixth Amendment rights because the question of mental retardation was not decided by the jury. By written order dated November 13, 2002, Applicant's second claim was dismissed and his first claim was remanded to the trial court for consideration.

On remand, the trial court conducted a hearing by affidavit, after which it entered findings of fact and conclusions of law recommending that relief be denied on Applicant's claim. This Court has reviewed the record. We adopt the trial judge's findings and conclusions, except finding number 62. Based upon the trial court's findings and conclusions and our own review, the relief sought is denied.

IT IS SO ORDERED THIS THE 18^TH DAY OF APRIL, 2007.

DO NOT PUBLISH