IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,035
EX PARTE ROY GENE SMITH
ON APPLICATION FOR A POST-CONVICTION WRIT OF HABEAS CORPUS
IN CAUSE NO. 512673-B IN THE 208TH JUDICIAL
DISTRICT COURT OF HARRIS COUNTY
Per curiam.
O R D E R
This is a subsequent post conviction application for writ of habeas corpus filed pursuant to the provisions of Article 11.071, Section 5, of the Texas Code of Criminal Procedure.
In May 1990, a Harris 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 in favor of the State, and the trial court, accordingly, set applicant’s punishment at death. This Court affirmed applicant’s conviction and sentence on direct appeal. Smith v. State, No. 71,099 (Tex. Crim. App. Feb. 24, 1993) (not designated for publication).
On April 18, 1997, applicant filed his initial post-conviction application for writ of habeas corpus in the convicting court. This Court subsequently denied Applicant relief. Ex parte Smith, No. WR-42,801-01 (Tex. Crim. App. Sep. 29, 1999) (not designated for publication). Applicant also unsuccessfully challenged his death sentence in a federal habeas petition. Smith v. Quarterman, 515 F.3d 392 (5th Cir. 2008). There was no petition for a writ of certiorari from this decision.
Applicant’s second subsequent writ application was received in this Court on September 2, 2008. After reviewing the case, we file and set and order the parties to brief the following issues:
(1)May this Court consider the merits of applicant’s subsequent application for a post-conviction writ of habeas corpus under Article 11.071 §5(a)(1) of the Texas Code of Criminal Procedure?
(2)Assuming that this Court may consider the merits of applicant’s subsequent application for a post-conviction writ of habeas corpus, is applicant entitled to the relief he seeks, that is, a new punishment hearing?
(3)Assuming that this Court may consider the merits of applicant’s subsequent application for a post-conviction writ of habeas corpus and assuming that he is entitled to the relief he seeks, does the opinion of the United States Court of Appeals for the Fifth Circuit in Smith v. Quarterman, 515 F.3d 392 (5th Cir. 2008), affect this Court’s review of applicant’s application or otherwise bar the granting of the relief he seeks?
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 90 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 120 days after the date of this order.
IT IS SO ORDERED THIS THE 5TH DAY OF NOVEMBER, 2008.
Do Not Publish