Opinion
No. WR-48,437-02
Delivered: July 17, 2006. DO NOT PUBLISH.
On Application for Writ of Habeas Corpus in Cause No. 96-CR-5255 from the 186th District Court of Bexar County.
PER CURIAM. HOLCOMB, J., files a concurring statement in which MEYERS, WOMACK and COCHRAN, JJ., Join. PRICE and JOHNSON, JJ., not participating.
ORDER
This is a subsequent application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure, Article 11.071, § 5. Applicant was convicted of capital murder on May 6, 1997. We affirmed the judgment and sentence on February 17, 1999. Applicant's original application for writ of habeas corpus, timely filed with the trial court, was considered by this Court and relief was denied on March 7, 2001. Applicant has filed a subsequent application under the provisions of Texas Code of Criminal Procedure, Article 11.071, § 5. We have reviewed the subsequent application for habeas relief and find that it does not meet the requirements for consideration under Texas Code of Criminal Procedure, Article 11.071, § 5. Applicant's subsequent application for habeas corpus is DISMISSED as an abuse of the writ and his motion for stay of execution is DENIED.
I agree with the Court's dismissal of the subsequent application, which is required by Section 5(a) of Article 11.071 of the Code of Criminal Procedure. The applicant's ground of actual innocence was presented in his first application. It was denied. He has presented nothing new in this application. His claim of ineffective assistance of counsel could have been raised in his first application. His grounds of denial of confrontation and mental retardation could come within an exception in Section 5. But the former does not state a claim under the Confrontation Clause of the Sixth Amendment, and he has not made a prima facie showing of mental retardation.