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 2009-04

Briseno, Ex Parte Jose Garcia ( 2009 )


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  •   IN THE COURT OF CRIMINAL APPEALS

    OF TEXAS



    NO. AP-76,132




    EX PARTE JOSE GARCIA BRISENO




    ON APPLICATION FOR WRIT OF HABEAS CORPUS

    IN CAUSE NO. 1929-CRA28-D1(B)

    FROM THE 49TH JUDICIAL DISTRICT COURT

    WEBB COUNTY



               Per Curiam.


    O R D E R


               We have before us an application for writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure Article 11.071, § 5.

               Applicant was convicted of capital murder on June 24, 1992, and sentenced to death. We affirmed the conviction and sentence on direct appeal. Briseno v. State, No. AP-71,489 (Tex. Crim. App. June 29, 1994). On July 31, 1995, applicant filed in the trial court his initial application for writ of habeas corpus pursuant to Article 11.07. We denied relief. Ex parte Briseno, No. WR-29,819-02 (Tex. Crim. App. Nov. 27, 1996)(not designated for publication). On July 10, 2002, applicant filed a subsequent application in the convicting court. We remanded his claims to the convicting court for resolution. After the case was returned to this Court, we reviewed the findings of the convicting court, adopted them, and denied applicant relief. Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004).

               Applicant’s second subsequent application was filed in the trial court on April 1, 2009. On April 2, 2009, this Court dismissed the second claim raised in that application. In his first claim, applicant asserted that his jury was precluded from giving effect to the mitigating evidence admitted in his trial. Specifically, applicant complained that his jury was given an unconstitutional nullification instruction. Because the procedural posture of applicant’s case is nearly identical to that in Ex parte Hood, 211 S.W.3d 767 (Tex. Crim. App. 2007), and because this Court has found it prudent to reconsider the decision in that case, see Ex parte Hood, Nos. 41,168-10 and AP-75,370 (Tex. Crim. App. Sept. 9, 2008)(not designated for publication), the Court stayed applicant’s execution. Ex parte Briseno, No. WR-29,819-04 (Tex. Crim. App. Apr. 2, 2009).

               The Court has now decided to file and set this case on this issue and order briefing. The parties shall first brief the procedural aspect of this case. Specifically, the parties shall discuss the applicability of Ex parte Hood, 211 S.W.3d 767 (Tex. Crim. App. 2007), and whether that decision remains sound law in light of the latest United States Supreme Court cases of Abdul-Kabir v. Quarterman, 550 U.S. 233 (2007); Brewer v. Quarterman, 550 U.S. 286 (2007); and Smith v. Texas (Smith II), 550 U.S. 297 (2007). Regardless of each party’s position on the procedural issue, each shall then address the merits of the first issue raised in applicant’s writ application. Both briefs shall be due in this Court within thirty (30) days of the date of this order.

               IT IS SO ORDERED THIS THE 8TH DAY OF APRIL, 2009.

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