Opinion
No. WR-44,564-03
November 26, 2008. DO NOT PUBLISH.
On Application for Writ of Habeas Corpus in Cause No. F93-03527-S in the 282nd Judicial District Court, Dallas County.
Keller, P.J., and Price, J., not participating.
ORDER
This is a post conviction application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure article 11.071. Applicant was convicted of capital murder in March 1994. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure article 37.071, and the trial court sentenced applicant to death. This Court affirmed applicant's conviction and sentence on direct appeal. Lave v. State, No. AP-71,897 (Tex.Crim.App. Nov. 20, 1996) (not designated for publication). On January 26, 1998, Applicant filed his initial post-conviction application for writ of habeas corpus pursuant to Article 11.071. We denied relief. Ex parte Lave, No. WR-44,564-01 (Tex.Crim.App. Sept. 20, 2000) (not designated for publication). Applicant filed a subsequent application in which he asserted that an accomplice's out-of-court statements were admitted in violation of Crawford v. Washington, 541 U.S. 36 (2004). We dismissed that application as an abuse of the writ on September 7, 2007. Ex parte Lave, No. WR-44,564-02 (Tex.Crim.App. Sept. 7, 2007) (not designated for publication). Applicant then filed a petition for writ of certiorari and an application for stay of execution in the United States Supreme Court. The Supreme Court granted the petition, vacated this Court's judgment, and remanded the case to this Court. Lave v. Texas, 128 S. Ct. 1442 (2008). On further consideration, we again dismissed the application as an abuse of the writ. Ex parte Lave, 257 S.W.3d 235 (Tex.Crim.App. 2008). Applicant presents one allegation. We have reviewed the application and find that the allegation satisfies the requirements of Texas Code of Criminal Procedure Article 11.071, Sec. 5(a). Accordingly, we find that the requirements for consideration of a subsequent application have been met and the cause is remanded to the trial court for consideration of the allegation. IT IS SO ORDERED THIS THE 26TH DAY OF NOVEMBER, 2008.