Nash, Jimmy Lee ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-64,518-01

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EX PARTE JIMMY LEE NASH, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 01F0271-202 IN THE 202ND DISTRICT COURT FROM BOWIE COUNTY

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   Per curiam.

O P I N I O N  

   Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated robbery and sentenced to forty years' imprisonment. In his initial appeal, the court of appeals concluded that the trial court erred in failing to charge the jury on the lesser included offense of robbery. Nash v. State, 115 S.W.3d 136, 141 (Tex. App. -- Texarkana 2003, no pet.). On remand, Applicant was again convicted of aggravated robbery and sentenced to forty years' imprisonment. The Sixth Court of Appeals affirmed the second conviction on appeal. Nash v. State, 175 S.W.3d 427 (Tex. App.-- Texarkana 2005, pet. ref'd).

Applicant filed this application with the district clerk on November 29, 2004. At that time, Applicant's direct appeal was pending. Mandate issued on March 1, 2006. This Court has determined that Applicant's writ was denied in error. After reconsideration on its own motion, the Court finds that Applicant's previous application for a writ of habeas corpus should have been dismissed because Applicant's direct appeal was pending. Accordingly, the Court withdraws its prior order denying the application without written order and enters an order dismissing the application.

Applicant's writ application is dismissed without prejudice. See Ex parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997).

Delivered: December 13, 2006

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