IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
FROM REFUGIO COUNTY
CONCURRING STATEMENT
This is Applicant's second subsequent writ application. In it he alleges that the State knowingly elicited perjured testimony at his trial. Within the last few days the witness has signed an affidavit to this effect. However, in that affidavit, the witness admits that he had confessed his perjury prior to Applicant's first subsequent writ application, but refused at that time to give an affidavit. Thus, the factual basis for the claim was "ascertainable" at least as of the filing of the first subsequent writ application, if not before. See Article 11.071, § 5(e). Applicant knew about and could have alleged the perjury at that time, documented his attempts to obtain an affidavit, and invoked the compulsory processes of the court, requesting a hearing at which to call the witness and place him under oath. Because the current claim could have been presented in a previously considered application, Applicant cannot now establish that the factual basis for his claim was unavailable, for purposes of a second subsequent writ application under Article 11.071, section 5 (a).
Filed: August 31, 2006.
Do Not Publish.