Opinion
No. AP-75,262
Delivered October 5, 2005. DO NOT PUBLISH.
On Application for Writ of Habeas Corpus in Cause No. 241-80362-97, 241st Judicial District Court Smith County.
OPINION
This is a subsequent application for writ of habeas corpus filed pursuant to the provisions of Article 11.071 § 5 of the Texas Code of Criminal Procedure. On October 4, 1999, a jury convicted Applicant of capital murder. At punishment, the jury answered the special issues submitted pursuant to Article 37.071 of the Texas Code of Criminal Procedure, and the trial court set Applicant's punishment at death. This Court affirmed Applicant's conviction on direct appeal. Horn v. State, No. AP-73,684 (Tex.Crim.App. Dec. 4, 2002) (not designated for publication). Applicant asserts that his death sentence is unconstitutional because he was seventeen years old at the time he committed the capital murder in this case. On March 1, 2005, the United States Supreme Court held that the Eighth and Fourteenth Amendments to the United States Constitution prohibit the execution of offenders who were seventeen years old at the time they committed capital murder. Roper v. Simmons, 125 S.Ct. 1183 (2005). Because the legal basis for Applicant's claim was not previously available, his application meets the requirements of Article 11.071 § 5(a)(1), and his claim should be considered. Although the trial court has not entered findings of fact and conclusions of law regarding whether Applicant was seventeen when he committed the offense in this case, we take judicial notice of the trial record, which does contain such evidence. Concluding from the record that Applicant was seventeen when he committed the instant offense, we reform the sentence in cause number 241-80362-97 from the 241ST Judicial District Court of Smith County to reflect a sentence of confinement for life in the Texas Department of Criminal Justice — Institutional Division.