EX PARTE TIMOTHY COCKRELL (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-41,775-02

EX PARTE TIMOTHY COCKRELL

ON APPLICATION FOR WRIT OF HABEAS CORPUS

IN CAUSE NO. 1992-CR-6426-W2 IN THE 226TH

JUDICIAL DISTRICT COURT OF BEXAR COUNTY

Per curiam.

O R D E R

This is a post conviction application for a writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure article 11.071.

In July 1993, a jury found applicant guilty of the offense of capital murder. The jury also answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071 in favor of the State, and the convicting court, accordingly, set applicant's punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Cockrell v. State, 933 S.W.2d 73 (Tex. Crim. App. 1996). Applicant filed his initial post-conviction application for writ of habeas corpus in the convicting court on July 21, 1997. This Court subsequently denied Applicant relief. Ex parte Cockrell, No. WR-41,775-01 (Tex. Crim. App. delivered Sept. 22, 1999) (not designated for publication). Applicant later filed this subsequent application for a writ of habeas corpus in the convicting court on January 19, 2005, arguing that he is mentally retarded and cannot be executed after the United States Supreme Court's decision in Atkins v. Virginia, 536 U.S. 304 (2002) (holding that the death penalty is excessive punishment for a mentally retarded criminal). The convicting court forwarded the application to this Court as required by Texas Code of Criminal Procedure article 11.071, section 5(b), and finding that the subsequent writ application met the requirements of section 5(a), this Court remanded it to the convicting court for findings and conclusions on the claim. The convicting court conducted an evidentiary hearing and has entered findings of fact and conclusions of law recommending that relief be denied.

After reviewing these findings and conclusions and the record from both the writ application and the trial, this Court is remanding this subsequent writ application to the convicting court to enter additional findings of fact and conclusions of law. Specifically, the convicting court shall enter additional findings and conclusions addressing the discrepancies between its earlier finding of mental retardation in regard to the voluntariness of applicant's confession and its current finding that applicant has failed to demonstrate by a preponderance of the evidence that he is mentally retarded. The convicting court shall also enter any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of applicant's claim.

Further, because this Court does not hear evidence, Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. Within 120 days of the date of this order, the trial court shall resolve these issues and have the clerk forward the record to this Court. (1)

IT IS SO ORDERED THIS THE 1st DAY OF OCTOBER, 2008.

Do Not Publish

1. 1 In the event any continuances are granted, copies of the order granting the continuance should be provided to this Court.