IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
FROM CAUSE NO. W296-80233-90 IN THE 296TH DISTRICT COURT
COLLIN COUNTY
O R D E R
On June 22, 2005, applicant filed an application for writ of habeas corpus pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071, § 5, and a motion for stay of execution. On June 28, 2005, this Court granted the stay, found that the application satisfied the requirements of Article 11.071, § 5(a), and remanded to the convicting court for a factual determination of the issue.
The record has been returned to this Court and we now determine that the case will be filed and set to address applicant's single issue raised in his application: whether the nullification issue the jury received in the punishment phase of applicant's trial suffered from the same defects that the United States Supreme Court found unconstitutional in Penry v. Johnson, 532 U.S. 782 (2001)(Penry II), and Smith v. Texas, 543 U.S. 37 (2004). The parties are ordered to brief the merits of this issue in light of the entire charge that the jury received, harm under Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1985) (op. on reh'g), and whether the issue should have been raised in either the first or second applications. Applicant's brief is due in this Court within 30 days after the date of this order, and the State's brief is due in this Court within 30 days after the date applicant files his brief. Oral argument will be permitted upon request.
IT IS SO ORDERED THIS THE 5th DAY OF April, 2006.
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