No. WR-41,168-06
Delivered: June 17, 2008. DO NOT PUBLISH.
On Application for Original Writ of Habeas Corpus from Cause No. W296-80233-90 in the 296th District Court of Collin County.
Price, J., filed a concurring statement. Johnson, J., dissents for the reasons stated in her opinions in Ex parte Alba and Ex parte Chi .
PER CURIAM.
ORDER
We have before us an original application for writ of habeas corpus, a motion for leave to file that application, and a motion for stay of execution. Applicant asserts his execution will violate his Eighth Amendment right against cruel and unusual punishment. Applicant was convicted of the capital murder of Ronald Williamson and Tracie Lynn Wallace. The jury answered the special issues in such a manner that a sentence of death was imposed on August 29, 1990. This Court affirmed the conviction and sentence on direct appeal. Hood v. State, AP-71,167 (Tex.Crim.App. November 24, 1993) cert. denied, 513 U.S. 834 (1994). Applicant's initial application for writ of habeas corpus was denied. Ex parte Hood, WR-41,168-01 (Tex.Crim.App. April 21, 1999). Applicant filed a subsequent application in the trial court on May 24, 2004. The subsequent application was dismissed. Ex parte Hood, WR-41,168-02 (Tex.Crim.App. April 13, 2005). Applicant filed a second subsequent application on June 22, 2005. We remanded to the convicting court for resolution of the claim. When the case was returned to this Court we held that applicant had, in fact, not met the requirements of Article 11.071, Section 5, for consideration of subsequent claims and dismissed his application. Ex parte Hood, 211 S.W.3d 767 (Tex.Crim.App. 2007). On May 6, 2008, applicant moved this Court to reconsider his direct appeal, we denied the motion. Hood v. State, No. AP-71,167 (Tex.Crim.App. May 14, 2008). Applicant filed a subsequent application for writ of habeas corpus and an original application for writ of habeas corpus on June 12, 2008. We dismissed the application filed under Article 11.071 and denied leave to file the original application. Ex parte Hood, WR-41,168-04 WR-41,164-05 (Tex.Crim.App. June 16, 2008). The claim raised today could have been raised in the June 12, 2008 applications, but was not. Leave to file the application is denied and applicant's motion for stay of execution is denied. IT IS SO ORDERED THIS THE 17TH DAY OF JUNE, 2008.
Price, J., filed a concurring statement.
CONCURRING STATEMENT
For the second time in the past five days the applicant has filed an application for writ of habeas corpus invoking our original habeas corpus jurisdiction. This time he challenges the constitutionality of the Texas protocol for lethal injection. Assuming he could raise the issue in an original writ application, as suggested in Judge Cochran's concurring opinion in Chi, the applicant abuses the writ by attempting to file a claim at this late date when he filed an original application just five days ago and made no attempt to raise the issue then. For these reasons I concur in the Court's order dismissing this latest pleading and denying the applicant's motion for stay of execution.