IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
ON APPLICATION FOR WRIT OF HABEAS CORPUS
IN CAUSE NO. 8701-A IN THE 21ST JUDICIAL
DISTRICT COURT BASTROP COUNTY
O R D E R
This is a subsequent post conviction application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure article 11.071 § 5.
In May 1998, a Bastrop County jury convicted Applicant of the offense 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. Reed v. State, No. AP-73,135 (Tex. Crim. App. Dec. 6, 2000) (not designated for publication).
On November 15, 1999, Applicant filed his initial post-conviction application for writ of habeas corpus in the convicting court. This Court subsequently denied Applicant relief. Ex parte Reed, No. WR-50,961-01 (Tex. Crim. App. Feb. 13, 2002) (not designated for publication). On February 8, 2001, Applicant filed a "Supplemental Claim for Relief on Application for Writ of Habeas Corpus" in the convicting court. This Court construed the filing as a subsequent application and dismissed it. Ex parte Reed, No. WR-50,961-02 (Tex. Crim. App. Feb. 13, 2002) (not designated for publication).
Applicant's second subsequent writ application was received in this Court on June 15, 2005. We reviewed the application and found that Applicant's allegations raised under Brady v. Maryland, 373 U.S. 83 (1963), regarding the Barnett and Keng affidavits and the items submitted under seal satisfied the requirements of Article 11.071 § 5. Accordingly, we remanded the application to the trial court for consideration of these claims with the receipt of live, testimonial evidence.
On July 5, 2006, this case was returned to this Court after remand. After reviewing the case, we file and set and order the parties to brief the following issues:
(1) Assuming, arguendo, that the trial court entered a finding of fact or conclusion of law that has multiple sentences or phrases and that a portion of the finding or conclusion is supported by the record, while another portion is not, to what extent does this Court owe deference to the trial court on such a finding or conclusion? May the Court disregard the finding or conclusion in its entirety?
(2) Assuming, arguendo, that numerous findings or conclusions, or parts thereof, are not supported by the record, how should this affect the level of deference to the findings and conclusions as a whole?
(3) Applicant has included in a subsequent writ a free-standing claim of actual innocence that we have previously rejected. The subsequent writ also includes specific Brady claims. May this Court treat the actual-innocence claim as a Schlup claim? If so, is the Schlup claim sufficient to resurrect Brady claims from Applicant's prior writs that would otherwise be procedurally barred and permit use of those claims in determining whether Applicant is entitled to relief on his current subsequent application?
The parties are ordered to brief any relevant procedural aspects as well as the merits of these issues. The parties' initial briefs shall be filed with this Court within 60 days of the date of this order. Each party may also file a reply brief addressing any matter in the other party's initial brief, and any such reply brief shall be filed with this Court no later than 90 days after the date of this order.
IT IS SO ORDERED THIS THE 6TH DAY OF JUNE, 2007.
Do Not Publish