Opinion
NO. WR-46,587-03
10-23-2019
EX PARTE BRENT RAY BREWER, Applicant
ON APPLICATION FOR WRIT OF HABEAS CORPUS CAUSE NO. 6997-A IN THE 47TH DISTRICT COURT RANDALL COUNTY
Per curiam. 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.
In 1991, Applicant was convicted of capital murder and sentenced to death for murder during the course of a robbery. TEX. PENAL CODE § 19.03(a). We affirmed Applicant's conviction and sentence on direct appeal. Brewer v. State, No. 71,307 (Tex. Crim. App. June 22, 1994) (not designated for publication). We denied relief on Applicant's initial application for writ of habeas corpus. Ex parte Brewer, No. 46,587-01, 50 S.W.3d 492 (Tex. Crim. App. 2001).
Applicant's sentence was later vacated in federal post-conviction proceedings. Brewer v. Quarterman, 512 F.3d 210 (5th Cir. 2007). Applicant was retried on punishment and again sentenced to death. We affirmed Applicant's sentence on direct appeal. Brewer v. State, No. AP-76,378 (Tex. Crim. App. Nov. 23, 2011) (not designated for publication). We denied relief on Applicant's initial application for writ of habeas corpus on the punishment retrial. Ex parte Brewer, No. WR-46,587-02 (Tex. Crim. App. Sept. 17, 2014).
Applicant then filed a petition for writ of habeas corpus in federal district court. Because the petition contained unexhausted claims, the federal district court stayed the proceedings to give Applicant an opportunity to exhaust his claims in state court. See Brewer v. Davis, No. 2:15-CV-50-BR (N.D. Tex. Sept. 25, 2018). Applicant filed this subsequent application for writ of habeas corpus in the convicting court on November 21, 2018. The convicting court forwarded the application to this Court, where it was received on February 5, 2019. See TEX. CODE CRIM. PROC. art. 11.071, § 5(b)(1).
Applicant presents three allegations in the instant application. In his first claim, Applicant alleges that his trial counsel was ineffective for failing to investigate and present evidence to rebut the State's case on future dangerousness and to support his case on mitigation. Applicant's second claim alleges prosecutorial misconduct, trial court error, and trial counsel ineffectiveness regarding the non-disclosure of a co-defendant's mental health records. Applicant's third claim alleges trial counsel ineffectiveness and Ex Post Facto Clause error because he did not receive a new trial on guilt-innocence in addition to receiving a new punishment trial under statutory law in effect at the time of his offense.
We have reviewed this subsequent application and find that the allegations fail to satisfy the requirements of Article 11.071, § 5(a). Accordingly, we dismiss the application as an abuse of the writ without considering the merits of the claims. TEX. CODE CRIM. PROC. art. 11.071, § 5(c).
IT IS SO ORDERED THIS THE 23RD DAY OF OCTOBER, 2019. Do Not Publish