Tercero, Bernardo Aban ( 2015 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-62,593-04
EX PARTE BERNARDO ABAN TERCERO, Applicant
ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS
AND MOTION TO STAY THE EXECUTION FROM CAUSE NO. 762351
IN THE 232 ND JUDICIAL DISTRICT COURT
HARRIS COUNTY
Per curiam. M EYERS, J., dissents.
ORDER
This is a subsequent application for a writ of habeas corpus filed pursuant to the
provisions of Texas Code of Criminal Procedure Article 11.071 § 5 and a motion to stay
applicant’s execution.1
In October 2000, a jury found applicant guilty of the offense of capital murder.
The jury answered the special issues submitted pursuant to Article 37.071, and the trial
1
Unless otherwise indicated all references to Articles refer to the Code of
Criminal Procedure.
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court, accordingly, set applicant’s punishment at death.
This Court affirmed applicant’s conviction and sentence on direct appeal. Tercero
v. State, No. AP-73,992 (Tex. Crim. App. Sept. 18, 2002)(not designated for publication).
This Court denied relief on applicant’s initial post-conviction application for a writ of
habeas corpus and dismissed his first subsequent writ application. Ex parte Tercero, Nos.
WR-62,593-01 and WR-62,593-02 (Tex. Crim. App. Nov. 16, 2005)(not designated for
publication).
In his second subsequent writ application, applicant alleged that he was younger
than 18 years of age when he committed the crime for which he was sentenced to death.
The Court found that the application met the requirements of Article 11.071 § 5 and
remanded the application to the trial court. The trial court found that applicant had failed
to show by a preponderance of the evidence that he was younger than 18 years of age
when he committed the offense. The Court reviewed the record, adopted the trial court’s
findings and conclusions, and denied relief. Ex parte Tercero, No. WR-62,593-03 (Tex.
Crim. App. Mar. 3, 2010)(not designated for publication).
On August 24, 2015, applicant filed in the trial court a subsequent application for a
writ of habeas corpus. In this subsequent application, applicant asserts that he was denied
due process because the State presented false testimony at his trial.
After reviewing applicant’s subsequent application, we find that he has satisfied
the requirements of Article 11.071 § 5. Accordingly, we remand the application to the
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trial court to review the merits of the claim. Applicant’s execution is stayed pending
resolution of this application.
IT IS SO ORDERED THIS THE 25 th DAY OF AUGUST, 2015.
Do Not Publish