           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                    AP-76,906

                 EX PARTE ROOSEVELT SMITH, JR., Applicant

             ON APPLICATION FOR A WRIT OF HABEAS CORPUS
              CAUSE NO. 1045419 IN THE 263RD DISTRICT COURT
                             HARRIS COUNTY



      Per Curiam.

                                     OPINION

      This is a post-conviction application for writ of habeas corpus filed pursuant to the

provisions of Texas Code of Criminal Procedure Article 11.071.

      In October 2007, a jury found Applicant guilty of the offense of capital murder. 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, No. AP-

75,793 (Tex. Crim. App. September 29, 2010), cert. denied, 131 S. Ct. 1815 (2011).
                                                                                    SMITH – 2

       Applicant presents fifteen allegations in his application in which he challenges the

validity of his death sentence. In allegation nine, he contends that he is mentally retarded and

that his execution would violate the Eighth Amendment. See Atkins v. Virginia, 536 U.S.

304 (2002). On April 10, 2012, the trial court adopted the State’s Proposed Findings of Fact

and Conclusions of Law. The State’s expert, Timothy J. Proctor, Ph.D., evaluated Applicant

and concluded that he met the three-prong criteria for mental retardation. See Ex parte

Modden, 147 S.W.3d 293, 296 (Tex. Crim. App. 2004). Based on Proctor’s conclusion, the

trial court recommends that this Court grant relief on allegation nine. The record supports

the trial court’s findings and conclusions. Accordingly, we grant relief. We reform

Applicant’s sentence to life without parole in the Texas Department of Criminal Justice

Correctional Institutions Division. Applicant’s remaining claims are dismissed as moot.




DELIVERED:     November 7, 2012
DO NOT PUBLISH
