        IN THE COURT OF CRIMINAL APPEALS
                    OF TEXAS


                                    NO. WR-58,358-02



                         EX PARTE JOSE NOEY MARTINEZ



        ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE
            NO. CR-0385-95-G(2) IN THE 370TH DISTRICT COURT
                           HIDALGO COUNTY



       Per curiam.

                                       OPINION

       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.

       In November 1996, Applicant was convicted of the offense of capital murder. The

jury answered the special issues submitted pursuant to Texas 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. Martinez v. State, No. AP-72,704
                                                                                  Martinez - 2

(Tex. Crim. App. June 30, 1999)(not designated for publication). This Court denied relief

on Applicant’s initial post-conviction application for writ of habeas corpus. Ex parte

Martinez, 195 S.W.3d 713 (Tex. Crim. App. 2006).

       Applicant presents two allegations in his -02 writ application. First, he claims that his

execution would violate the Eighth Amendment’s prohibition against the execution of the

mentally retarded. See Atkins v. Virginia, 536 U.S. 304 (2002). Second, he contends that his

execution would violate his due process rights unless he is provided “a full and fair hearing

on his claim of mental retardation and the tools necessary to establish his claim.” These

claims, which satisfy the requirements of Article 11.071, § 5, were remanded to the trial court

for consideration of those issues. The trial court held a hearing on remand. The trial court

then made findings of fact and conclusions of law in which it determined that Applicant “is

a person with intellectual disability (mental retardation)” and “is constitutionally ineligible

for a death sentence.”

       This Court has reviewed the record with respect to the allegations made by Applicant.

We grant relief on the -02 writ application and reform the trial court’s judgment to reflect a

sentence of life imprisonment.

Delivered: June 15, 2016
Do Not Publish
