EX PARTE WALTER ALEXANDER SORTO (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-71,381-03

EX PARTE WALTER ALEXANDER SORTO

ON APPLICATION FOR WRIT OF HABEAS CORPUS

CAUSE NO. 921805 IN THE 184TH DISTRICT COURT

HARRIS COUNTY

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. (1)

In November 2003, a jury convicted applicant of the offense of capital murder. The jury answered the special issues submitted under Article 37.071, and the trial court, accordingly, set punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Sorto v. State, No. AP-74,836, 173 S.W.3d 469 (Tex. Crim. App. 2005), cert. denied, 548 U.S. 926 (2006).

Applicant filed his initial post-conviction application for writ of habeas corpus in the convicting court on July 13, 2005. He filed a subsequent application on July 20, 2006, asserting that the Eighth Amendment bars his execution because he is mentally retarded and requesting a full assessment for mental retardation. See Atkins v. Virginia, 536 U.S. 304, 321 (2002). This Court denied relief on the initial application and dismissed the subsequent application under Art. 11.071, § 5. Ex parte Sorto, Nos. WR-71,381-01 and WR-71,381-02 (Tex. Crim. App. Feb. 25, 2009) (not designated for publication). Applicant then filed a federal habeas petition alleging that he is mentally retarded and requesting funds for the preparation of his federal petition. Sorto v. Thaler, No. H-10-CV-613 (S. D. Tex., February 25, 2010). On July 12, 2010, the federal district court stayed the case, finding that the claim was unexhausted and that it was unclear whether Texas state courts would find the claim to be procedurally defaulted. Id., Document No. 11 at 2 (citing Balentine v. Thaler, 609 F.3d 729 (5th Cir. June 18, 2010), reh'g granted, op. withdrawn, 626 F.3d 842 (5th Cir. November 17, 2010)). Applicant then filed this second subsequent application for writ of habeas corpus in the convicting court on November 8, 2010. It was received by this Court on February 3, 2011.

In this second subsequent application, applicant asserts that the Eighth Amendment bars his execution because he is mentally retarded; extraneous offense evidence was erroneously admitted; and he received ineffective assistance of trial counsel because counsel failed to thoroughly investigate and present mitigating evidence.

We have reviewed this second subsequent application and find that applicant has failed to make a threshold presentation of evidence that, if true, is sufficient to show that no rational factfinder would fail to find that he is mentally retarded. See Ex parte Blue, 230 S.W.3d 151, 163 (Tex. Crim. App. 2007). Further, the application does not contain sufficient specific facts establishing that but for a violation of the United States Constitution, no rational juror would have answered one or more of the special issues in the State's favor. The application fails to meet the dictates of Article 11.071, § 5(a). Accordingly, the application is dismissed. Art. 11.071, § 5(c).

IT IS SO ORDERED THIS THE 20th DAY OF APRIL, 2011.

Do Not Publish

1. Unless otherwise indicated, all references to Articles are to the Texas Code of Criminal Procedure.