Jennings, Ex Parte Robert Mitchell ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NOS. AP-75,806 and AP-75,807

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EX PARTE ROBERT MITCHELL JENNINGS

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ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE NO. 506814-A IN THE 208^TH DISTRICT COURT HARRIS COUNTY

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Per Curiam.  



O R D E R

This is a post conviction application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure article 11.071.

On July 13, 1989, a jury convicted applicant 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 punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Jennings v. State, No. AP-70,911 (Tex. Crim. App. Jan. 20, 1993)(not designated for publication).

Applicant presents two allegations in his application in which he challenges the validity of his conviction and resulting sentence. Although an evidentiary hearing was not held, the trial judge entered findings of fact and conclusions of law. The trial court recommended that relief be denied. This Court has reviewed the record with respect to the allegations made by applicant. Allegations two(sub-allegation one) and two(sub-allegation two), both regarding the effective assistance of counsel, are ordered filed and set for further review.

This Court also has reviewed a document entitled "Supplement to Application for Writ of Habeas Corpus" in which applicant raises one allegation asserting that the trial court improperly submitted a nullification instruction to the jury which violated the Eighth and Fourteenth Amendments. This document was filed after the deadline provided for the filing of an initial application for writ of habeas corpus. Thus, this document is a subsequent application which should be reviewed under Article 11.071 § 5. However, despite the provisions of Article 11.071 § 5, the trial court reviewed the issue and entered findings of fact and conclusions of law. This Court has reviewed the record with respect to this allegation and determined that the application should be filed and set.

The parties are ordered to submit briefs on the two allegations filed and set from the initial application and the single allegation filed and set from the subsequent application. In addition to addressing the merits of all three allegations, the parties shall brief how the recent United States Supreme Court cases of Abdul-Kabir v. Quarterman, 550 U.S. , 127 S.Ct. 1654 (2007), Brewer v. Quarterman, 550 U.S. , 127 S.Ct. 1706 (2007), and Smith v. Texas, 550 U.S. , 127 S.Ct. 1686 (2007) (Smith II), affect (or do not affect) the resolution of the issues. Briefs are due in this Court within 60 days of the date of this order. Upon filing the briefs, the Clerk of this Court will notify the parties of the submission and argument date. Oral argument will be permitted.

IT IS SO ORDERED THIS THE 12^TH DAY OF DECEMBER, 2007.

Do Not Publish