Opinion
No. WR-40,046-04
Delivered: December 18, 2008. DO NOT PUBLISH.
On Application for Writ of Habeas Corpus and Motion for Stay of Execution from Cause No. 1994-CR-2047, In the 226th District Court Bexar County.
WOMACK, J., filed a concurring statement. KEASLER, J., filed a concurring statement in which PRICE, J., joined. HERVEY, J., 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, and a motion for stay of execution. Applicant was originally convicted of capital murder and sentenced to death in June 1996. This Court reversed his conviction and sentence on direct appeal. Moore v. State, 969 S.W.2d 4 (Tex.Crim.App. 1998). In January 1999, this Court dismissed the writ application filed on the conviction. Ex parte Moore, No. WR-40,046-01 (Tex.Crim.App. Jan. 27, 1999) (not designated for publication). In July 1999, another jury found applicant guilty of capital murder. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071, and the trial court, accordingly, set applicant's punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Moore v. State, No. AP-73,526 (Tex.Crim.App. Jan. 9, 2002) (not designated for publication). On February 28, 2001, applicant filed an initial Article 11.071 writ application in the trial court in which he raised thirty-five claims, including claims regarding the admission of evidence regarding the victim's reputation for violence and claims of ineffective assistance of counsel. This Court denied relief on May 14, 2003. Ex parte Moore, No. WR-40,046-02 (Tex Crim. App. May 14, 2003) (not designated for publication). Applicant filed his first subsequent writ application in the trial court on March 13, 2006. He raised two claims: (1) that his due process rights were violated by the suppression of Brady evidence; and (2) that his due course of law rights were violated by law enforcement's failure to investigate alternate theories of the crime. This Court found that the allegations did not meet the dictates of Article 11.071, § 5, and dismissed the application. Ex parte Moore, No. WR-40,046-03 (Tex.Crim.App. Mar. 13, 2006) (not designated for publication). On November 18, 2008, applicant filed this his second subsequent application. Applicant raises a single claim in this application in which he asserts that he is actually innocent based on the newly discovered statements of three individuals. Applicant has failed to make a prima facie case of actual innocence. Therefore, we find that this allegation does not meet the dictates of Article 11.071, § 5. Accordingly, applicant's application is dismissed as an abuse of the writ, and his motion for stay is denied. IT IS SO ORDERED THIS THE 18TH DAY OF DECEMBER, 2008. Statement of WOMACK, J., respecting the dismissal of the application. I join the Court's order which dismisses this subsequent application because it does not meet the statutory requirement of showing actual innocence. The application also fails to meet the requirement that "the current claims and issues have not been and could not have been presented previously . . .because the factual or legal basis was unavailable on the date the applicant filed the previous application."
See CODE OF CRIMINAL PROCEDURE art. 11.071, § 5(a)(2).
Id., § 5(a)(1).