IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
FROM HARRIS COUNTY
O R D E R
This is a subsequent application for a writ of habeas corpus filed pursuant to Tex. Code Crim. Proc., Article 11.071.
On October 6, 1986, applicant was convicted of the offense of capital murder. The jury answered the special issues submitted under Tex. Code Crim. Proc., Article 37.071, and the trial court, in accordance with the jury's answers, sentenced applicant to death. This Court affirmed applicant's conviction and death sentence on direct appeal. Tennard v. State, 802 S.W.2d 678 (Tex. Crim. App., 1990).
Applicant filed an initial application for habeas corpus relief with the convicting court, and we denied relief on that original application on December 18, 1997. Ex parte Tennard, 960 S.W.2d 57 (Tex.Crim.App. 1997).
In this subsequent writ, applicant brings three claims, including an allegation of mental retardation under Atkins v. Virginia, 536 U.S. 304 (2002). However, we are informed that applicant is currently seeking federal habeas relief from this conviction in the United States Fifth Circuit Court of Appeals. We have not received notice from applicant that the federal courts have stayed all action in his federal writ application while applicant seeks habeas relief from the Texas state courts.
Therefore, under Ex parte Soffar, 143 S.W.3d 804 (Tex. Crim. App. 2004), we dismiss this application without prejudice because applicant's federal writ of habeas corpus challenging his capital murder conviction and death sentence is pending in federal court and the federal court has not stayed its proceedings for applicant to return to state court to consider his current unexhausted claims.
IT IS SO ORDERED THIS THE 10th DAY OF NOVEMBER, 2004.
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