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Hervey, J., delivered the opinion of the Court in which Keller, P.J., Meyers, Price, Keasler, Cochran and alcala, JJ., joined. Cochran, J., filed a concurring opinion. Johnson, J., filed a dissenting opinion. Womack, J., dissented.


Appellant was convicted in December 1995 of capital murder. Tex. Penal Code § 19.03(a)(2). Based on the jury’s answers to the special issues set forth in the Texas Code of Criminal Procedure, Article 37.071, Sections 2(b) and 2(e), the trial judge sentenced Appellant to death. Art. 37.071, § 2(g).*fn1 His conviction and sentence were affirmed on direct appeal. Gonzales v. State, No. AP-72,317 (Tex. Crim. App. June 3, 1998) (not designated for publication). Appellant’s state application for habeas corpus relief was denied. Ex parte Gonzales, No. WR-40,541-01 (Tex. Crim. App. March 10, 1999) (not designated for publication). Appellant’s federal petition for habeas corpus relief was denied as to his conviction but granted as to punishment, and the case was remanded for a new punishment hearing. Gonzales v. Cockrell, No. MO-99-CA-073 (W.D. Tex. December 19, 2002) (not designated for publication). The United States Court of Appeals for the Fifth Circuit affirmed the federal district court’s judgment. Gonzales v. Quarterman, No. 03-50021 (5th Cir. July 31, 2006) (not designated for publication).

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