EX PARTE MILTON WUZAEL MATHIS (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-50,772-04

EX PARTE MILTON WUZAEL MATHIS

ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE

NO. 31,361-D IN THE 268TH DISTRICT COURT

FORT BEND COUNTY

Per Curiam. Keasler, J., filed a concurring statement in which Hervey, J., joined.

O R D E R

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

On September 7, 1999, a jury convicted applicant of the offense of capital murder. The jury answered the special issues submitted pursuant to 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. Mathis v. State, 67 S.W.3d 918 (Tex. Crim. App. 2002). This Court denied relief on applicant's timely filed initial writ application on April 3, 2002. Ex parte Mathis, No. WR-50,772-01 (Tex. Crim. App. Apr. 3, 2002)(not designated for publication). Applicant filed a subsequent writ application in the trial court on July 24, 2003. However, because a writ was also pending in federal court, this Court dismissed the application without prejudice. Ex parte Mathis, No. WR-50,772-02 (Tex. Crim. App. Mar. 3, 2004)(not designated for publication). Applicant filed a second subsequent writ application in the trial court on February 8, 2006, in which he raised a claim that he was mentally retarded. This Court remanded the case for a hearing, and ultimately denied relief. Ex parte Mathis, No. WR-50,772-03 (Tex. Crim. App. Sept. 20, 2006)(not designated for publication).

Today, on the day applicant is scheduled to be executed, applicant has filed a third subsequent application again alleging that he is mentally retarded and that his execution would violate the United States Supreme Court's opinion in Atkins v. Virginia, 536 U.S. 304 (2002). This Court has reviewed the record and determined that the application does not meet the dictates of Article 11.071, § 5. Accordingly, it is dismissed.

IT IS SO ORDERED THIS THE 21st DAY OF JUNE, 2011.

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