Acuna, Robert Aaron ( 2005 )

  





IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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AP-74,982

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ROBERT AARON ACUNA, Appellant

v.

THE STATE OF TEXAS

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APPEAL OF CASE 968,601 OF THE 262ND JUDICIAL DISTRICT COURT OF HARRIS COUNTY

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Per curiam.

In August 2004, a jury convicted the appellant of capital murder, the offense proscribed by Section 19.03 of the Penal Code. Pursuant to the jury's answers to the special issues set forth in Code of Criminal Procedure Article 37.071, sections 2(b) and 2(e), the trial court sentenced the appellant to death. Appeal to this Court is required by Section 2(h) of the same article.

On March 1, 2005, the United States Supreme Court held in Roper v. Simmons, 543 U.S.___, 125 S. Ct. 1183, 161 L. Ed. 2d 1, that the "Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed." 543 U.S, at ___, 125 S.Ct., at 1200, 161 L. Ed. 2d, at 28. In his only point of error on appeal, the appellant asserts that he was seventeen years old when he committed the instant offense. Evidence in the record supports this assertion. Thus, the execution of the sentence of death on the appellant would violate the Eighth and Fourteenth Amendments to the United States Constitution.

However, on June 22, 2005, pursuant to the United States Supreme Court's opinion in Roper v. Simmons, and a recommendation from the Board of Pardons and Paroles, Governor Rick Perry issued Proclamation No. 2005-00001, DPS # 07166134, wherein he commuted the appellant's sentence to life imprisonment. The issue raised by the appellant and any complaints of errors in the punishment phase are now moot.

The appellant's conviction is affirmed. See May v. State, 632 S.W.2d 751 (Tex. Crim. App. 1982); Adams v. State, 624 S.W.2d 568 (Tex. Crim. App. 1981).

Meyers, J., not participating.

En banc.

Delivered October 26, 2005.

Do Not Publish.