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 2010-06

Powell, David Lee ( 2010 )


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    IN THE COURT OF CRIMINAL APPEALS

    OF TEXAS



    NO. WR-7,407-04

    EX PARTE DAVID LEE POWELL


    ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS AND MOTION FOR STAY OF EXECUTION FROM CAUSE NO. 91-91524 IN THE 167TH JUDICIAL DISTRICT COURT

    TRAVIS COUNTY

    Per Curiam. Womack and Johnson, JJ., not participating.

    O R D E R



    This is a subsequent application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071, § 5, and a motion for a stay of execution.

    In September 1978, a jury found applicant guilty 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 applicant's punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Powell v. State, 742 S.W.2d 353 (Tex. Crim. App. 1987). The United States Supreme Court vacated and remanded the case in Powell v. Texas, 487 U.S. 1230 (1988), and this Court affirmed the conviction and sentence on remand. Powell v. State, 767 S.W.2d 759 (Tex. Crim. App. 1989). The Supreme Court thereafter reversed applicant's conviction. Powell v. Texas, 492 U.S. 680 (1989).

    Applicant was convicted and sentenced to death a second time in November 1991. On direct appeal, this Court affirmed applicant's conviction, but vacated his death sentence and remanded for a new punishment trial. Powell v. State, 897 S.W.2d 307 (Tex. Crim. App. 1994), overruled by Prystash v. State, 3 S.W.3d 522 (Tex. Crim. App. 1999). In March 1999, the jury answered the special issues submitted to it in applicant's third punishment trial, and the trial court, accordingly, set applicant's punishment at death. This Court affirmed his conviction on direct appeal. Powell v. State, No. AP-71,399 (Tex. Crim. App. Jan. 16, 2002)(not designated for publication).

    In September 2001, applicant filed in the trial court his initial post-conviction application for writ of habeas corpus pertaining to his third death sentence. This Court denied applicant relief. Ex parte Powell, No. WR-7,407-02 (Tex Crim. App. Sept. 25, 2002)(not designated for publication). Applicant filed his first subsequent application in the trial court on July 8, 2009. This Court dismissed the application. Ex parte Powell, No. WR-7,407-03 (Tex. Crim. App. Sept. 30, 2009)(not designated for publication). Applicant filed this, his second subsequent application in the convicting court on June 8, 2010.

    Applicant presents a single allegation in his application. We have reviewed the application and find that applicant's claim fails to meet the dictates of Article 11.071, § 5. Accordingly, we dismiss his application and deny his motion to stay his execution.

    IT IS SO ORDERED THIS THE 14TH DAY OF JUNE, 2010.



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