EX PARTE JUAN LIZCANO, Appellant

AFFIRMED; Opinion Filed August 28, 2007.
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00720-CR
............................
EX PARTE JUAN LIZCANO, Appellant
        .............................................................
On Appeal from the 282nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. WX07-90028-S
.............................................................
MEMORANDUM OPINION
Before Justices Wright, Richter, and Lang
Opinion By Justice Lang
        Juan Lizcano appeals the trial court's order denying his application for writ of habeas corpus. Appellant was charged with capital murder of a police officer. On April 30, 2007, appellant filed a pretrial application for writ of habeas corpus seeking a separate jury determination of whether he is mentally retarded and, if so, ineligible for the death penalty. After pretrial hearings, the trial judge denied appellant the relief he sought. Appellant contends the trial court erred in denying a separate pretrial jury to review evidence and consider the propriety of the death penalty. We affirm the trial judge's order denying the relief sought in the application for writ of habeas corpus.
        In reviewing the trial court's decision to grant or deny habeas corpus relief, we view the facts in the light most favorable to the trial court's ruling and uphold it absent an abuse of discretion. See Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006). We afford almost total deference to the court's determination of the historical facts that are supported by the record, especially when the fact findings are based on an evaluation of credibility and demeanor. See Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003) (per curiam), overruled in part on other grounds, Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007). We afford the same amount of deference to the trial court's application of the law to the facts if the resolution of the ultimate questions turns on an evaluation of credibility and demeanor. See Peterson, 117 S.W.3d at 819. If the resolution of the ultimate questions turns on an application of legal standards, we review the determination de novo. Id.
        The writ of habeas corpus is an extraordinary writ; neither a trial court nor an appellate court should entertain an application for writ of habeas corpus where there is an adequate remedy by appeal. See Weise v. State, 55 S.W.3d 617, 619 (Tex. Crim. App. 2001). A person seeking relief pursuant to an application for writ of habeas corpus must be restrained illegally to be entitled to relief. Id. Habeas corpus is not appropriate where resolution of the question presented, even if resolved in favor of the applicant, would not result in immediate release. Id. A pretrial writ of habeas corpus may raise certain issues which, if meritorious, would bar prosecution or conviction. See Ex parte Smith, 185 S.W.3d 887, 892 (Tex. Crim. App. 2006).
        The execution of mentally retarded persons is prohibited. See Atkins v. Virginia, 536 U.S. 304, 321 (2002); Hall v. State, 160 S.W.3d 24, 35-36 (Tex. Crim. App. 2004), cert. denied, 545 U.S. 1141 (2005). The United States Supreme Court has left to the states the task of fashioning appropriate procedures for determining whether a defendant is mentally retarded and subject to the death penalty. See Atkins, 536 U.S. at 317; Hall, 160 S.W.3d at 36. A separate jury determination of mental retardation is not required. See Hall, 160 S.W.3d at 36 (discussing the Court's adoption of temporary post-trial habeas corpus context guidelines “during the legislative interregnum.”) (citing Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004)); see also Ex parte Lewis, 223 S.W.3d 372, 375 n.10 (Tex. Crim. App. 2006) (per curiam).         However, a separate sentencing proceeding is required where a person is convicted of a capital offense and the death penalty is sought by the State. See Tex. Code Crim. Proc. Ann. art. 37.071, § 2(a)(1) (Vernon 2006). Evidence of mental retardation is relevant to special issues in the punishment phase of a capital murder case. See Mines v. State, 852 S.W.2d 941 (Tex. Crim. App. 1992) (en banc), vacated, 510 U.S. 802 (1993), reaff'd, 888 S.W.2d 816 (Tex. Crim. App. 1994).
        The judgment of conviction in a capital offense and sentence of death is subject to automatic review by the Texas Court of Criminal Appeals. See Tex. Code Crim. Proc. Ann. art. 37.071, § 2(h). Issues regarding mental retardation can be raised by post-judgment appeal, and post-judgment habeas corpus. See Tex. Code Crim. Proc. Ann. art. 11.071; Ex parte Blue, No. AP-75,254, 2007 WL 676194 (Tex. Crim. App. Mar. 7, 2007); Penry v. State, 178 S.W.3d 782 (Tex. Crim. App. 2005); Ex parte Modden, 147 S.W.3d 293 (Tex. Crim. App. 2004).
        In three issues, appellant contends the trial court erred in not impaneling a separate pretrial jury; denying his request for a separate jury to consider the propriety of the death penalty; and denying him the opportunity to present evidence in this regard to a separate jury. Appellant further contends his procedural due process rights would be unduly prejudiced unless his issues are resolved prior to trial. The State responds pretrial application for writ of habeas corpus is not cognizable here because even if granted, appellant would not be released from custody, and there is no requirement to have a separate jury determine mental retardation. The State further responds that challenges regarding trial procedure are not cognizable in a pretrial habeas claim.
        Appellant acknowledged at a pretrial hearing there is no statutory authority supporting his request for a pretrial jury determination of mental retardation and eligibility for the death penalty. The State contends such a procedure is not required by federal law. The Atkins interim post-trial procedures currently in place are appropriate for determining whether appellant is mentally retarded, and whether he is eligible for the death penalty. See Hall, 160 S.W.3d at 36. Appellant's claims are not cognizable on habeas because he has adequate remedies available on appeal. See Tex. Code Crim. Proc. Ann. art. 11.071; Hall, 160 S.W.3d at 36; Blue, 2007 WL 676194; Penry, 178 S.W.3d at 782; Modden, 147 S.W.3d at 293.
        Appellant does not contend he is restrained illegally, but only “seeks relief and release from the exposure to the death penalty at the trial[.]” There is nothing in the record on appeal indicating appellant is illegally restrained. Therefore, appellant is not entitled to habeas relief on this basis. See Weise, 55 S.W.3d at 619.
        Even if we granted his pretrial separate jury, we agree with the State it would not result in appellant's immediate release from custody. Appellant's best possible result under this scenario is relief from being subject to the death penalty. We further agree with the State that there is no procedural restriction on the State's power to prosecute defendants who claim mental retardation. Appellant would remain subject to prosecution and possible conviction. See Smith, 185 S.W.3d at 892. Therefore, appellant's claims are not cognizable on habeas because even if granted appellant would not be released from custody or be free from prosecution or conviction. Id.
        Appellant's claims are not cognizable by application for writ of habeas corpus. Accordingly, we resolve appellant's three issues against him.
        We affirm the trial judge's order denying the relief sought by appellant in his application for writ of habeas corpus.
                                                          
                                                          DOUGLAS S. LANG
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 4
070720f.u05