Lewis, David Lee ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

---

NO. WR-38,355-03

---

EX PARTE DAVID LEE LEWIS ⁽¹⁾

---

ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE NO. 13,160 IN THE 217^TH DISTRICT COURT ANGELINA COUNTY

---

Per Curiam. COCHRAN, J., filed a statement concurring in the denial of relief, in which Price and Hervey, JJ., joined. Womack, J., filed a dissenting statement in which JOHNSON and HOLCOMB, JJ., joined.

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.

In April 1987, 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. Because some of the reporter's notes from the trial were lost, this Court reversed the conviction. Lewis v. State, 844 S.W.2d 750 (Tex. Crim. App. 1993). On retrial in June 1993, applicant pleaded guilty to the offense of capital murder. A second jury answered the special issues, and the trial court, accordingly, set punishment at death. This Court affirmed. Lewis v. State, 911 S.W.2d 1 (Tex. Crim. App. 1995).

Applicant presented two allegations in his application. 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 October 15, 2003, applicant's second claim was dismissed and his first claim was remanded to the trial court for consideration. By written order dated December 8, 2004, this Court instructed the trial court to hold a live hearing on the issue.  

On remand, the trial court conducted a live hearing, 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

for findings eight and fifteen, which we reject. Based upon the trial court's findings and conclusions and our own review, the relief sought is denied.

IT IS SO ORDERED THIS THE 6^TH DAY OF DECEMBER, 2006.

Publish

1. The record of applicant's direct appeal and previous documents submitted to this Court indicate that applicant's name is "David Lee Lewis." Documents filed in applicant's habeas case alternatively refer to applicant as "David Lee Lewis" and as "David Leon Lewis." For consistency, applicant will be referred to as "David Lee Lewis."