Tercero, Bernardo Aban

• Court: Court of Criminal Appeals of Texas
• Decided: March 3, 2010
• Docket: WR-62,593-03
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

WR-62,593-03 EX PARTE BERNARDO ABAN TERCERO

ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS

FROM CAUSE NO. 762351-B IN THE 232^ND DISTRICT COURT

HARRIS COUNTY

Per curiam.

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 October 2000, applicant was convicted 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 punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Tercero v. State, No. AP-73,992 (Tex. Crim. App. September 18, 2002)(not designated for publication).

Applicant alleges that he was younger than 18 years of age when he committed the crime for which he was sentenced to death. Therefore, he asserts that under Roper v. Simmons, 543 U.S. 551 (2005), his execution is prohibited by the Eighth and Fourteenth Amendments of the United States Constitution. This claim, which satisfies the requirements of Article 11.071 § 5 of the Texas Code of Criminal Procedure, was remanded to the trial court for consideration of that issue.

The trial court, without holding an evidentiary hearing, adopted the State's proposed findings of fact and conclusions of law recommending that relief be denied because Applicant has failed to show by a preponderance of the evidence that he was younger than 18 years of age when he committed the instant offense. This Court has reviewed the record with respect to the allegation made by applicant. We adopt the trial judge's findings and conclusions. Based upon the trial court's findings and conclusions and our own review, we deny relief.

IT IS SO ORDERED THIS THE 3^RD DAY OF MARCH, 2010.

Do Not Publish