DocketNumber： WR-56,197-02
Filed Date： 7/20/2007
Status： Precedential
Modified Date： 9/15/2015
IN THE COURT OF CRIMINAL APPEALS
This is a subsequent application for writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure, Article 11.071, Section 5. Applicant asserts the State withheld material exculpatory evidence from him before trial and during appeal and post-conviction review.
Applicant was convicted of capital murder on November 17, 1994, for a double homicide and robbery committed on August 15, 1990. We affirmed the conviction and sentence. Johnson v. State, No. 72,046 (Tex. Crim. App. December 16, 1998) (opinion on rehearing). This Court denied relief on applicant's initial application for writ of habeas corpus pursuant to Article 11.071. Ex parte Johnson, WR-56,197-01 (Tex. Crim. App. October 8, 2003).
We have reviewed the application. We note that a similar claim was raised in the initial application for writ of habeas corpus, that material exculpatory evidence within the prosecutor's files was withheld by the State. We adopted the convicting court's finding on that issue "that the State's file was always open to the applicant's trial counsel, and that trial counsel went to the State's office to inspect the file." That finding is applicable here because applicant has not made a prima facie showing that the State withheld any evidence from its files. Thus, he has not shown that the "newly discovered" evidence is either newly available or withheld by the State. We find that applicant's claims do not meet the requirements of Article 11.071, Section 5 for consideration of subsequent claims. This application is dismissed as an abuse of the writ. Applicant's motion for stay of execution is denied.
IT IS SO ORDERED THIS THE 20TH DAY OF JULY, 2007.
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