Opinion
No. WR-51,306-02
November 15, 2005. DO NOT PUBLISH.
On Application for Writ of Habeas Corpus Cause No. 710716-B in the 337th Judicial District, from Harris County.
ORDER
This is a subsequent application for a writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure, Article 11.071, Section 5. Applicant asserts he has newly discovered evidence of prosecutorial misconduct. Applicant was convicted of capital murder on November 4, 1996. On direct appeal, this Court affirmed the conviction and sentence. Shannon Charles Thomas v. State, No. 72,701 (Tex.Crim.App. March 31, 1999). On November 24, 1998, applicant filed his initial application for writ of habeas corpus pursuant to Article 11.071. We denied relief. Ex parte Thomas, No. WR-51,306-01 (Tex.Crim.App. March 20, 2002). Applicant admits that: 1) the legal basis for this claim was available when he filed his initial application; 2) he made this legal claim in his original writ; and 3) it was rejected. However, he now asserts that the factual basis for this claim was purposefully hidden from him by the State and that he could not have discovered the factual basis until now, and that the State's purported misconduct allows him to file and have considered this subsequent application under Article 11.071, Section 5(a)(1). Applicant has not shown that the factual basis of his present claim was not ascertainable through the exercise of reasonable diligence on or before the date the applicant filed the previous application. Applicant has failed to meet the requirements for consideration of this subsequent application under Article 11.071, Section 5. This application is dismissed as an abuse of the writ and his motion for stay of execution is denied. IT IS SO ORDERED.