Opinion
No. WR-59,101-02
Filed: March 3, 2010. DO NOT PUBLISH.
On Application for Writ of Habeas Corpus. Cause No. 99F0506-005-B in the 202nd Judicial District Court, Bowie County.
PRICE, JOHNSON and HOLCOMB, JJ., would file and set.
ORDER
This is a post-conviction application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071. In October 2001, a jury convicted applicant of the offense of capital murder. The jury answered the special issues submitted under Article 37.071 of the Texas Code of Criminal Procedure, and the trial court, accordingly, set punishment at death. Art. 37.071, § 2(g). This Court affirmed applicant's conviction and sentence on direct appeal. Speer v. State, No. AP-74,253 (Tex. Crim. App. Oct. 8, 2003) (not designated for publication). Applicant filed his initial post-conviction application for writ of habeas corpus in the convicting court on June 18, 2003. This Court denied relief. Ex parte Speer, No. WR-59,101-01 (Tex. Crim. App. June 30, 2004) (not designated for publication). Thereafter, applicant filed a habeas petition in federal district court. Speer v. Dretke, No. 2:04-cv-00269, 2008 WL 2065798 (E.D. Tex. May 13, 2008) (not selected for publication). After reviewing a co-defendant's federal habeas petition, applicant moved the federal district court to stay the proceedings so that applicant could exhaust newly-discovered claims in state court. The district court granted the stay. Applicant then filed this subsequent habeas application in the convicting court on July 8, 2008. In compliance with Art. 11.071, § 5(b)(1), the convicting court forwarded this application to this Court. We remanded this application in order to give applicant an opportunity to show when and how he obtained the evidence at issue and whether he exercised due diligence to obtain the evidence at the earliest opportunity. The trial court has now forwarded the supplemented record to this Court, and it found that the application failed to show an exception to Article 11.071, § 5. We have reviewed this subsequent application and find that the allegations fail to satisfy the requirements of Article 11.071, § 5(a). Accordingly, the application is dismissed as an abuse of the writ. Art. 11.071, § 5(c). IT IS SO ORDERED THIS THE 3RD DAY OF MARCH, 2010.
Unless otherwise indicated, all references to Articles are to the Texas Code of Criminal Procedure.