Neville, Jr., Robert James ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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WR-48,694-02/03

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EX PARTE ROBERT JAMES NEVILLE, JR.

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ON APPLICATION FOR WRIT OF HABEAS CORPUS AND WRIT OF MANDAMUS IN CAUSE NO. 0685474 FROM THE 371^ST DISTRICT COURT OF TARRANT COUNTY

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Per Curiam. Cochran, J., filed a statement concurring in the dismissal of the writ and denial of a stay of execution, in which Johnson and Keasler, JJ., joined.



ORDER

This is a subsequent application for writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure, Article 11.071, Section 5, and a motion for leave to file writ of mandamus. Applicant asserts he is mentally retarded and cannot be executed. He also alleges the trial court has failed to properly apply Texas Code of Criminal Procedure, Article 43.141 in setting the date of execution.

Applicant was convicted of capital murder and waived his right to appeal and to file an application for writ of habeas corpus. This Court ordered that the trial court determine

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whether the waiver was knowingly and voluntarily entered. On September 19, 1999, the trial court confirmed that applicant knowingly and voluntarily waived his right to counsel and to pursue his post conviction rights of appeal and habeas corpus. This Court reviewed the record of the trial, found no fundamental error and affirmed the conviction and sentence. Neville v. State, No. 73,368 (Tex. Crim. App. December 1, 1999). When the mandate issued from this Court, the trial court set a date for execution. At that time applicant rescinded his waiver of habeas corpus, counsel was appointed, the death warrant was withdrawn, and an application was filed. After reviewing the application, this Court denied relief. Ex parte Neville, No. WR-48,694-01 (Tex. Crim. App. March 28, 2001).

We have reviewed this application and find that it does not meet the requirements of Texas Code of Criminal Procedure, Article 11.071, section 5, for consideration of the claims raised in a subsequent application for writ of habeas corpus. As such, the application is dismissed as an abuse of the writ. We also find that the trial court did not fail to properly observe the statutory requirements in setting the date of execution under the provisions of Texas Code of Criminal Procedure, Article 43.141. Leave to file the motion for writ of mandamus is denied. The motion to stay execution is denied.

IT IS SO ORDERED THIS THE 6^TH DAY OF FEBRUARY, 2006.

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