Cockrell, Timothy ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-41,775-02

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EX PARTE TIMOTHY COCKRELL

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ON APPLICATION FOR WRIT OF HABEAS CORPUS CAUSE NO. 92-CR-6426 IN THE 226^th JUDICIAL DISTRICT COURT BEXAR 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.

On July 17, 1993, 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. This Court affirmed applicant's conviction and sentence on direct appeal. Cockrell v. State, 933 S.W.2d 73 (Tex. Crim. App. 1996). Applicant's initial application was received in this Court on May 26, 1999, and relief was denied by written order dated September 22, 1999.

In a single allegation in this subsequent application, applicant asserts 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. We have reviewed the application and find that the allegations satisfy the requirements of Article 11.071 § 5. Accordingly, we remand the application to the trial court for consideration of applicant's claim.

IT IS SO ORDERED THIS THE 8^TH DAY OF JUNE, 2005.

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