IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 921126-B IN THE 351ST DISTRICT COURT
HARRIS COUNTY
O R D E R
This is a subsequent application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure article 11.071.
Applicant was convicted of capital murder in October 2002. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure article 37.071, and the trial court sentenced applicant to death. This Court affirmed applicant's conviction and sentence on direct appeal. Prible v. State, 3 S.W.3d 522 (Tex. Crim. App. 1999)175 S.W.3d 724 (Tex. Crim. App. 2005). On November 19, 2004, applicant filed his initial post-conviction application for writ of habeas corpus pursuant to Article 11.071. We denied relief. Ex parte Prible, No. WR-69,328-01 (Tex. Crim. App. June 18, 2008) (not designated for publication). While his initial application was pending, applicant filed two subsequent writ applications which were dismissed as an abuse of the writ. Ex parte Prible, Nos. WR-69,328-02 and WR-69,328-03 (Tex. Crim. App. June 18, 2008) (not designated for publication). Applicant then filed a federal petition for writ of habeas corpus. The federal district court found that several claims in that petition were unexhausted, and stayed and administratively closed the federal proceedings in order to allow applicant to seek state court review of those claims. Prible v. Thaler, No. H-09-CV-1896 (S. D. Tex., April 30, 2010) (not designated for publication).
Applicant filed this subsequent application with the convicting court on September 8, 2010. In it, he raises five claims challenging his conviction and sentence. We have reviewed the application and cannot determine on this record whether the factual basis for these claims was unavailable on the dates that applicant filed his previous applications. Therefore, this cause is remanded to the trial court so that the habeas corpus record can be supplemented with evidence relating to the Section 5 bar. Specifically, applicant shall have the opportunity to show when and how he obtained the evidence at issue and whether he exercised reasonable diligence to obtain this evidence at the earliest opportunity. Following receipt of this additional information, the trial court shall determine whether any of the claims satisfy the requirements of Article 11.071, § 5. If appropriate, the trial court shall enter factual findings and credibility determinations.
If the trial court determines that any of the claims satisfy the requirements of Section 5, then the trial court shall proceed to address those claims on the merits. The trial court shall supplement the habeas corpus record with any evidence relating to the merits of such claims. The trial court may resolve the issues using any means set forth in Texas Code of Criminal Procedure article 11.071. The trial court shall make any findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of the claims for habeas corpus relief.
This application for habeas corpus relief will be held in abeyance pending the trial court's compliance with this order. The trial court shall receive evidence on the issues presented within 60 days of the date of this order. (1) A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be returned to this Court within 90 days of the date of this order. (2)
IT IS SO ORDERED THIS THE 15TH DAY OF DECEMBER, 2010.
Do Not Publish
1. In the event any continuances are granted, copies of the order granting the continuance
shall be provided to this Court.
2. Any extensions of this time period shall be obtained from this Court.