Henderson, Cathy Lynn ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-49,984-02

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EX PARTE CATHY LYNN HENDERSON, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS FROM CAUSE NO. 94-2034 IN THE 299^TH DISTRICT COURT TRAVIS COUNTY

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   Keller, P.J., filed a dissenting opinion in which Hervey, J. joined.

Before a court can consider the merits of a habeas application, the application must contain sufficient facts establishing one of the three exceptions listed in Article 11.071, §5(a). ⁽¹⁾ The facts alleged in the present application, even if accepted as true, do not establish any of the exceptions listed in §5. In Ex parte Staley, we explained that an applicant could not meet the §5(a)(1) exception on the basis of new law simply by relying upon United States Supreme Court cases that established new law. ⁽²⁾ He was still required to show that the facts in his case fit "under the umbrella of that 'new' legal claim." ⁽³⁾ Similarly, new facts can show a new factual basis under §5(a)(1) only if the new facts would establish a claim upon which relief could be granted. Even assuming that the new medical research constitutes "new facts" that were unavailable at the time the previous application was filed, those new facts, even if accepted, do not establish any recognized claim for relief. Consequently, the statutory scheme requires this Court to dismiss the application. Because the Court does not, I respectfully dissent.

Filed: June 11, 2008

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1. Tex. Code Crim. Proc., Art. 11.071, §5(a).

2. 160 S.W.3d 56, 63-64 (Tex. Crim. App. 2005).

3. Id.