Opinion
NO. WR-78,133-02
10-10-2017
EX PARTE ANTHONY ALLEN SHORE, Applicant
ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS IN CAUSE NO. 966087-B IN THE 339 JUDICIAL DISTRICT COURT HARRIS COUNTY Per curiam. ORDER
We have before us a subsequent application for a writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071 § 5.
In October 2004, a jury found applicant guilty of the 1992 capital murder of Maria Del Carmen Estrada. 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. Shore v. State, No. AP-75,049 (Tex. Crim. App. Dec. 12, 2007)(not designated for publication).
Applicant raised ten allegations in his initial application for a writ of habeas corpus, including allegations that he was denied due process, equal protection, and the effective assistance of counsel by trial counsel's failure to present mitigating evidence at the punishment phase of trial. He also asserted that he was denied due process, equal protection, and the effective assistance of counsel by counsel's failure to seek medical and forensic determination of his organic brain syndrome and present mitigating evidence of this syndrome. This Court adopted the trial court's findings of fact and conclusions of law and denied relief on applicant's claims. Ex parte Shore, No. WR-78,133-01 (Tex. Crim. App. Jan. 16, 2013)(not designated for publication).
On September 12, 2017, applicant filed in the trial court his first subsequent application for a writ of habeas corpus. In this application, applicant notes that executing a defendant is unconstitutional if the punishment is disproportionate to his personal culpability. He asserts that his execution is unconstitutional because the punishment is disproportionate to his personal culpability and serves no legitimate penal objective. More specifically, he asserts that he is brain damaged, and he claims that executing a brain damaged individual, like executing an intellectually disabled individual, is categorically prohibited by the Eighth Amendment.
Because the factual and legal bases for his claim were available at the time he filed his initial application for a writ of habeas corpus, applicant recognizes that he cannot meet the requirements of Article 11.071 § 5(a)(1). Instead, he argues that this Court should grant a review of his claim under Article 11.071 § 5(a)(3).
After reviewing this application, we find that applicant has failed to make a prima facie showing that a person with brain damage, like an intellectually disabled person, should be categorically exempt from execution. More specifically, we find that applicant has failed to make a prima facie showing in his specific case that no rational juror would have answered in the State's favor one or more of the special issues that were submitted to the jury in applicant's trial under Article 37.071. Accordingly, we dismiss this application as an abuse of the writ without reviewing the merits of the claim raised. Art. 11.071 § 5(c).
IT IS SO ORDERED THIS THE 10 DAY OF OCTOBER, 2017. Do not publish