









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. 

O P I N I O N


	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).  
	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DO NOT PUBLISH
