Moore, Frank

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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NO. WR-40,046-04

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EX PARTE FRANK MOORE, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS AND MOTION FOR STAY OF EXECUTION FROM CAUSE NO. 1994-CR-2047

IN THE 226TH DISTRICT COURT

BEXAR COUNTY

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Keasler, J., filed a concurring statement in which Price, J., joins.

CONCURRING STATEMENT

I join the Court's order dismissing Moore's subsequent application for a writ of habeas corpus and denying Moore's motion for a stay. I choose to write separately to point out that a dismissal as an abuse of the writ under Article 11.071, Section 5 is appropriate because Moore has not made a prima facie showing ⁽¹⁾ that he is actually innocent under the standard announced in Ex parte Elizondo. ⁽²⁾

DATE DELIVERED: December 18, 2008

DO NOT PUBLISH

1. See

Ex parte Brooks, 219 S.W.3d 396, 400 (Tex. Crim. App. 2007); Ex parte Briseno, 135 S.W.3d 1, 3 (Tex. Crim. App. 2004).

2. 947 S.W.2d 202 (Tex. Crim. App. 1996).