Florence, Thomas Wayne ( 2015 )

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Ex parte Tommy Lee DORA
{548 S.W.2d 393) This is an application for writ of habeas corpus which was submitted to this Court
COURT OF CRIMINAL APPEALS OF TEXAS
by the trial court, pursuant to the.provisions of Art. 11.07, VAC.C.P.
548 S.W.2d 392; 1977 Tex. Crim. App. LEXIS 1217
No. 3802 .. Petitioner was convicted for the offense of burglary, enhanced under Art. 63, VAP.C., in the Criminal
February 16, 1977 District Court of Dallas County and assessed thii mandatory liie sente'nce in ihe penitentiary on
December 4, 1970. Petitioner's direct appeal from this Dallas conviction was affirmed. See Dora v.
State, 477- S.W2d 20 (Tex.Cr.App_ 1972).
Counsel Arthur R. Howard. Lubbock. for appellant.
Alton R. Griffin. Dist.Atty .. and John Terrell. Asst.Dist.Atty .. Peffi[oner filed an:application}or writ of tiatlea~ corp'us in the District Co~rt of Lubbock ~ounty,
Lubbock, Jim D. Vollers. State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the complaining.of the validity of a 1962_Lubbock.County convictio_n for burglary, which Y'as su.bsequently
State. used for enhancement in the above-mentioned Dallas County case. The trial court denied the
Judges: Roberts. Judge. application for writ of habeas corpus, finding that this application for writ of habeas corpus relief
"raises no new grounds and raises the same questions raised in the first application for writ of habeas
CASE SUMMARY corpus" which was previously denied on February 7, 1974.
From a review of petitioner's writ filed in this Court, it is to be noted that this Court entered a per
PROCEDURAL POSTURE: Petitioner challenged the decision of the District Court of Lubbock County curiam order on July B, 1975, in which we held:
(Texas), which denied his second application for writ of habeas corpus because no new issues were
"Under the circumstances presented in this case, we are of the opinion that petitioner has abused
raised.Application for writ of habeas corpus was dismissed with prejudice because petitioner had made no
the habeas corpus process by continually raising the same claims, over and over again, in his
effort to allege any new issues that had not been raised in a previous application.
postconviction writs. We hold that petitioner's contention has thus been waived and abandoned
by his abuse of the writ of habeas corpus. See Ex parte·Can, 511 S.W.2d 623 [523] (Tex.Cr.App.
OVERVIEW: Petitioner was convicted of robbery and given an enhanced sentence based on a prior 1974), and Sanders v. United States, 373 U.S. 1, B3 S. Ct.'106B [10 LEd. 2d 14.8] (1963), and
conviction. Petitioner's application for a writ of habeas corpus regarding the validity of the prior conviction cases cited therein."Therefore, in view of this holding, we hereby refuse to accept or file
was denied because it raised no new grounds and raised the same questions that were raised in a petitioner's {548 S.W.2d 394} instant application for writ of habeas corpus, and the clerk of this
previous application. Petitioner sought review and the court affirmed. The court found that petitioner made Court is hereby ordered not to accept in the future any poSt-conviction application for writ ol
no effort to allege that the instant allegations were not ones that had been raised, or could have been habeas corpus from this petitioner until it is first shown that such contention was not one that has
raised, in any earlier proceeding. The court dismissed the application with prejudice because petitioner been raised, or could have been raised, in any earlier proceeding. Until such showing is made,
had not attempted to make a showing of good cause for allowing are-filing of the application. petitioner's contention is not entitled to consideration." (Emphasis supplied)
In the instant case, the trial court has found that "no new issues" were raised which warranted further
OUTCOME: The court dismissed petitioner's second application for writ of habeas corpus with prejudice. consideration of this second petition. We agree. Petitioner has made no effort to allege that the
The court agreed with the trial court that no new issues were raised which warranted further consideration. instant allegations were not ones that had been raised, or could have been raised, in any earlier ·
proceeding. Absent such a showing of good cause for permitting the filing of such application, we
decline to file this application, or consider the merits of same.
LexisNexis Head notes
Criminal Law & Procedure > Habeas Corpus > Review > Standards of Review> General Overview
Where a petitioner has been previously cited for an abuse of the writ of habeas corpus, the trial court
should not thereafter consider the merits of any application for writ oi habeas corpus filed by that
petitioner. The trial court should, however, review the application and make findings that this petitioner has
_abused the writ in the past, thus making the review procedure of the appeals court more efficient.
Opinion Where a petitioner has been previously cited for an "abuse of the Great Writ," the trial court should not
thereafter consider the merits of any application for writ of habeas corpus filed by that petitioner. The
Opinion by: ROBERTS trial court should, however, review the application and make findings that this petitioner has abused
3txcases 3txcases
Q 2015 Ma«hew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to Cl2015 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restpc:tions and tenns and conditions of the Matthew Bender Mastet:,'Agreement. the restrictions and tenns and conditions of the Matthew Bender Master Agreement.
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the writ in the pasT. thus making the review procedure of this Court more efficient. The. transcript 1- • • ::-
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should be forwarded to this <::our!. just as in all other cases. pursuant to our automatic review !..
jurisdiction. See Art. 11.07"·Sec. 2{a), supra. The writ transcript should, of course, be forwarded to
this Court within fifteen·aays of-thE'! trial court's order. See Art. 11.07, Sec. 2(c), supra.
Uoon.receipt of the writ tra~'script from t!le trial court, this Court'shaUreview the petitione(s.alle1)Btions• I
e Tor aliowmQareJllmoJ>llbe abpllC8tiOH. ana npeUUoner has .¥stated .facts. which, I I
Jnie~·would.entitle'him:to·reliefj-':·then]hTsCourt wlii.order.the.petitlon·flied[ana;conside_\~~'!;:.
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If. however, the petitioner has not stated sufficient "good cause·: for allowing a re-filing of the petition,
or if the factual allegations concerning good cause are clearly without merit upon their face, then the i
petition shall not be fil~d or ,Cfi_nsipered henceforth by this Court. 1 i
In the case at bar, the petitioner,.not having attempted to make a showing of "good cause" for allowing
are-filing of this application.;the ap'plication is ordered dismissed with prejudice. No further
applications will be entertained. ..,.
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·i· Footnotes
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The writ·application tfans~iipt'i.tself willib€-kl!pt on1JI~-a~~pait ofthefp!irm'anent'business 'recordS:of
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~the restrictions and terms and conditions of the MStt~ew Bender Master Agreement.
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