Hernandez, Jesse Joe ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-62,840-02

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EX PARTE JESSE JOE HERNANDEZ

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ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS

AND MOTION FOR STAY OF EXECUTION

FROM CAUSE NO. W02-00777-Q IN THE 204^TH DISTRICT COURT

DALLAS COUNTY

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Per Curiam. Price, j., filed a concurring statement.

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, § 5, and a motion for a stay of execution.

In July 2002, a jury found applicant guilty of the offense 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 at death. This Court affirmed applicant's conviction and sentence on direct appeal. Hernandez v. State, No. AP-74,401 (Tex. Crim. App. May 26, 2004)(not designated for publication). Applicant filed his initial post-conviction application for writ of habeas corpus in the convicting court on May 4, 2004. This Court denied applicant relief. Ex parte Hernandez, No. WR-62,840-01 (Tex. Crim. App. May 3, 2006)(not designated for publication). This, applicant's first subsequent application, was filed in the trial court on March 20, 2012.

In his application, applicant raises a claim that his trial counsel was ineffective for failing to investigate and present evidence regarding the victim's cause of death. He argues that this Court should address this claim in his subsequent application because his initial state habeas counsel was ineffective in failing to properly raise the claim in his initial application. Applicant's allegation fails to meet the dictates of Article 11.071, § 5. Accordingly, we dismiss the application as an abuse of the writ without considering the merits of the claim, and we deny his motion for a stay of his execution.

IT IS SO ORDERED THIS THE 21^ST DAY OF MARCH, 2012.

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