No. WR-77,940-03.


Court of Criminal Appeals of Texas.




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 § 5.

In February 2004, a jury convicted applicant of the offense of capital murder. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071,1 and the trial court, accordingly, set punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Gallo v. State, 239 S.W.3d 757 (Tex. Crim. App. 2007). On March 26, 2007, applicant filed in the convicting court his initial post-conviction application for a writ of habeas corpus. After reviewing the application, this Court denied applicant relief. Ex parte Gallo, No. WR-77,940-01 (Tex. Crim. App. January 9, 2013) (not designated for publication).

The same attorney appointed to represent applicant in his initial habeas proceedings filed applicant's first subsequent writ application in the trial court on April 22, 2013. However, the attorney filed the application without applicant's permission and against applicant's express wishes. Accordingly, this Court dismissed the first subsequent writ application without prejudice to applicant to later file a subsequent writ application to be evaluated under Article 11.071 § 5, "as if it were the applicant's first subsequent writ application." Ex parte Gallo, 448 S.W.3d 1, 6 (Tex. Crim. App. 2014).

On January 8, 2014, applicant filed a petition for writ of habeas corpus in the United States District Court for the Southern District of Texas. In response to applicant's motion to stay, the federal district court entered an order staying its proceedings to allow Applicant to return to state court and file a subsequent state writ application raising his unexhausted claim that he is "constitutionally ineligible to be executed" under Atkins v. Virginia2 because he is intellectually disabled. See Tomas Raul Gallo v. Lorie Davis, No. 4:13-cv-01897 (S.D. Tex.), Order of August 18, 2016. Therefore, this Court may exercise its jurisdiction to consider this subsequent state application. See Ex parte Soffar, 143 S.W.3d 804, 807 (Tex. Crim. App. 2004).

This Court received applicant's instant habeas application on November 2, 2016. We will consider it under Article 11.071 § 5 as if it were applicant's first subsequent application. In this subsequent application, applicant raises eight claims, including claims that he is intellectually disabled and ineligible for execution under Atkins and that his sentence was obtained in violation of due process because it was based on false and misleading expert testimony concerning the question of whether he is intellectually disabled. After reviewing applicant's subsequent application, we find that his first and third allegations satisfy the requirements of Article 11.071 § 5. Accordingly, we remand those two claims to the trial court for resolution.



1. All references to articles herein refer to the Texas Code of Criminal Procedure.
2. 526 U.S. 304 (2002).


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