Plata, Daniel Angel ( 2004 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. 46,749-02

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EX PARTE DANIEL A. PLATA, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS FROM HARRIS COUNTY

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  Per Curiam.

ORDER  

This is a subsequent application for a writ of habeas corpus filed pursuant to Tex. Code Crim. Proc. art. 11.071.

On October 14, 1996, applicant was convicted of the offense of capital murder. Four days later, the jury answered the special issues submitted pursuant to Article 37.071, Tex. Code Crim. Proc., and the trial court, in accordance with the jury's answers, sentenced applicant to death. This Court affirmed applicant's conviction and death sentence on direct appeal. Plata v. State, No. 72,639 (Tex. Crim. App., July 8, 1998) (not designated for publication). This Court denied applicant's original application for a writ of habeas corpus on October 4, 2000. Ex parte Daniel Angel Plata, No. 46,749-01 (Tex. Crim. App. 2000). In this subsequent writ, applicant brings two claims, including an allegation of mental retardation under Atkins v. Virginia, 536 U.S. 304 (2002). However, both parties have informed us that applicant presently has a request for a Certificate of Appeal concerning the denial of his federal writ of habeas corpus pending before the Fifth Circuit Court of Appeals.

Therefore, under Ex parte Soffar, ___ S.W.3d ___, 2004 Tex. Crim. App. LEXIS 200 (Tex. Crim. App. 2004), we dismiss this application without prejudice because applicant's federal writ of habeas corpus challenging his capital murder conviction and death sentence is pending in the Fifth Circuit and that court has not stayed its proceedings for applicant to return to state court to consider his current unexhausted claims.

IT IS SO ORDERED THIS THE 15^th DAY OF SEPTEMBER, 2004.

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