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Click here for the full text of this decision FACTS:A Harris County jury convicted the applicant of the offense of capital murder, answered the special issues submitted pursuant to Texas Code of Criminal Procedure, Article 37.071, and the trial court, accordingly, set punishment at death. The applicant applied for habeas corpus relief pursuant to Texas Code of Criminal Procedure, Article 11.071 5. `The applicant presented two claims: First, that this Court should vacate the order of the trial court setting the date of execution due to problems associated with the Houston Police Department Crime Lab and uncatalogued evidence in the possession of the Houston Police Department; Second, that a juror considered parole eligibility during deliberations. The court finds the claims do not meet the requirements of Article 11.071 5. The appication is dismissed as an abuse of the writ, in an unpublished per curiam opinion. DISSENT:Price, J. “I continue to believe that the Court should stay the execution in this case because of the problems with the Houston Police Department Crime Lab. I write again because I disagree with the Court’s conclusion that the applicant has not met the requirements of Code of Criminal Procedure Article 11.071, Section 5. “Section 5 permits the Court to consider the merits of a subsequent application for writ of habeas corpus if the factual basis for the claim was unavailable when the applicant filed his initial application. Section 5(e) says that the “a factual basis of a claim is unavailable on or before a date described by Subsection (a)(1) if the factual basis was not ascertainable through the exercise of reasonable diligence on or before that date.” “The applicant’s initial application was denied May 31, 2000. The problems with the Houston Police Department Crime Lab did not come to light until late in 2002. The applicant has met the requirements of Section 5. Once a defendant has met the requirements of Section 5, we should remand to the convicting court for findings of fact and conclusions of law. I would grant the stay of execution and remand the case for findings. Because a majority of the Court votes otherwise, I respectfully dissent.”

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