Smith, Jack Harry ( 2009 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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WR-8,315-07

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EX PARTE JACK HARRY SMITH

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ON SUBSEQUENT APPLICATION FOR WRIT OF HABEAS CORPUS

CAUSE NO. 274702-C IN THE 230^TH DISTRICT COURT

HARRIS COUNTY

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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.

Applicant was convicted of the offense of capital murder in July 1978. The jury answered the special issues submitted under Article 37.071 of the Texas Code of Criminal Procedure, and the trial court, accordingly, set punishment at death. This Court affirmed Applicant's conviction and sentence on direct appeal. Smith v. State, 676 S.W.2d 379 (Tex. Crim. App. 1984), cert. denied, 471 U.S. 1061 (1985). This Court denied Applicant's initial post-conviction application for writ of habeas corpus. Ex parte Smith, No. WR-8,315-05 (Tex. Crim App. Oct. 30, 1985)(denied without written order). This Court then denied in part and dismissed in part Applicant's first subsequent application. Ex parte Smith, No. WR-8,315-06 (Tex. Crim. App. Sept. 10, 2003)(not designated for publication). Applicant's instant post-conviction application for writ of habeas corpus was received in this Court on January 16, 2009.

Applicant presents five allegations. We have reviewed the application and find that the following allegations satisfy the requirements of Texas Code of Criminal Procedure Article 11.071, § 5:

Claim I Mr. Smith's death sentence and execution violates the Eighth and Fourteenth Amendments because he is a person with mental retardation.

Claim IV Mr. Smith was denied his Eighth and Fourteenth Amendment rights to reliable sentencing because the jury at this capital sentencing proceeding lacked an adequate vehicle through which to express its reasoned moral response to the circumstances of the offense, Mr. Smith's character and background, and Mr. Smith's moral culpability.

  Applicant has met the requirements for consideration of a subsequent application with regard to these allegations. Accordingly, the cause is remanded to the trial court for consideration of these allegations. Applicant's remaining allegations are dismissed.

IT IS SO ORDERED THIS THE 11^th DAY OF MARCH, 2009.

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