This is a subsequent application for habeas corpus filed pursuant to Texas Code of Criminal Procedure, Article 11.071, Section 5. Applicant asserts he is mentally retarded and cannot be sentenced to death under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242 (2002).

Applicant was convicted of capital murder on 1998. We affirmed the conviction and sentence. Murphy v. State, No. 73,194 (Tex.Crim.App. May 24, 2000). On October 20, 2000, applicant filed his initial application for writ of habeas corpus pursuant to Article

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11.071. We denied relief. Ex parte Murphy, No. WR-38,198-02 (Tex.Crim.App. April 10, 2002).

We have reviewed this subsequent application and find that it has presented a prima facie case under our holding in Ex parte Briseno, 135 S.W.3d 1 (Tex.Crim.App. 2004) and satisfies the requirements of Texas Code of Criminal Procedure, Article 11.071, section 5. Accordingly, we find that the requirements for consideration of a subsequent application have been met in his first claim and the writ should issue according to Article 11.071, section 6. The cause is remanded to the trial court to resolve the issue as set out in Article 11.071, sections 7 through 10. Our determination necessitates the granting of a stay of execution until this matter is resolved by order of this Court.

IT IS SO ORDERED THIS THE 18^TH DAY OF JANUARY, 2006.

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