IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
ON APPLICATION FOR WRIT OF HABEAS CORPUS AND MOTION FOR STAY OF EXECUTION FROM CAUSE NOS. 33426, 33427, 33428, AND 33429
IN THE 15TH JUDICIAL DISTRICT COURT
GRAYSON COUNTY
O R D E R
We have before this Court a subsequent application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071, § 5, and a motion for stay of execution.
In April 1984, a jury found applicant guilty of four counts 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 in each case at death. This Court affirmed applicant's convictions and sentences on direct appeal. Bower v. State, 769 S.W.2d 887 (Tex. Crim. App. 1989). Applicant filed his initial post-conviction application for writ of habeas corpus in the convicting court on October 2, 1989, pursuant to Article 11.07 then in effect. The application challenged all four convictions and sentences. This Court filed and set each case and ultimately denied applicant relief. Ex parte Bower, 823 S.W.2d 284 (Tex Crim. App. 1991). Applicant then sought habeas relief in the federal district court. The district court conducted an evidentiary hearing in June 2000 and ultimately denied relief in a series of opinions issued in 2002-2004. The Fifth Circuit affirmed the district court's decision on September 18, 2007, and the United States Supreme Court denied applicant's petition for writ of certiorari on April 21, 2008. The instant application attacking all four convictions and sentences was received in this Court on June 25, 2008, along with applicant's motion to stay his execution. (1)
Applicant raises four issues in his application: (1) actual innocence based upon newly discovered evidence, (2) Brady violations, (3) a claim that the statute operated unconstitutionally because his jury did not have a vehicle to properly consider mitigating evidence, and (4) a claim that executing him after twenty-four years on death row amounts to cruel and unusual punishment. Before this Court had the opportunity to rule on whether any of these claims met the dictates of Article 11.071, § 5, we received a copy of the trial court's order of July 1, 2008, withdrawing the execution date "until after the petitioner has received a determination on his Motion For Forensic Testing and Application For Writ of Habeas Corpus."
If the trial court denies forensic testing, then the applicant may choose to appeal that decision to this Court. If the trial court grants testing, then the results of that testing may or may not impact the claims applicant has raised in his writ or he may choose to file an additional writ. Because the resolution of the proceedings below may result in piecemeal litigation or may affect the substance of the claims currently before us, we will refrain from acting on the current writ application until the results of that litigation are complete. Applicant is instructed to inform this Court of the decision of the trial court with regard to whether testing will be allowed, and, if testing is allowed, of any further action taken by the trial court in this case.
IT IS SO ORDERED THIS THE 21ST DAY OF JULY, 2008.
Do Not Publish
1. Because applicant had previously filed an application under Article 11.07, and because this Court had denied relief on that application prior to September 1, 1995, when Article 11.071 became effective, applicant was not entitled to file an initial application under Article 11.071. By the terms of the statute, this application is to be considered a subsequent application which must meet the dictates of Article 11.071 § 5 before the merits may be addressed by any court.