








IN THE COURT OF CRIMINAL APPEALS

OF TEXAS






NO. AP-75,262


EX PARTE PATRICK HORN





ON APPLICATION FOR WRIT OF HABEAS CORPUS 
IN CAUSE NO. 241-80362-97, 241ST JUDICIAL DISTRICT COURT

SMITH COUNTY



 Per curiam.  

O P I N I O N


	This is a subsequent application for writ of habeas corpus filed pursuant to the
provisions of Article 11.071 § 5 of the Texas Code of Criminal Procedure.
	On October 4, 1999, a jury convicted Applicant of capital murder.  At punishment,
the jury answered the special issues submitted pursuant to Article 37.071 of the Texas Code
of Criminal Procedure, and the trial court set Applicant's punishment at death.  This Court
affirmed Applicant's conviction on direct appeal.  Horn v. State, No. AP-73,684 (Tex. Crim.
App. Dec. 4, 2002)(not designated for publication).	
	Applicant asserts that his death sentence is unconstitutional because he was seventeen
years old at the time he committed the capital murder in this case.  On March 1, 2005, the
United States Supreme Court held that the Eighth and Fourteenth Amendments to the United
States Constitution prohibit the execution of offenders who were seventeen years old at the
time they committed capital murder.  Roper v. Simmons, 125 S.Ct. 1183 (2005).  Because the
legal basis for Applicant's claim was not previously available, his application meets the
requirements of Article 11.071 § 5(a)(1), and his claim should be considered.
	Although the trial court has not entered findings of fact and conclusions of law
regarding whether Applicant was seventeen when he committed the offense in this case, we
take judicial notice of the trial record, which does contain such evidence.  Concluding from
the record that Applicant was seventeen when he committed the instant offense, we reform
the sentence in cause number 241-80362-97 from the 241ST Judicial District Court of Smith
County to reflect a sentence of confinement for life in the Texas Department of Criminal
Justice - Institutional Division.
Delivered:	OCTOBER 5, 2005
Do Not Publish
