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Click here for the full text of this decision FACTS:In January 1991, applicant was convicted of the capital murder of Robert Read during a robbery in Tarrant County. Based upon the jury’s responses to four special issues, the trial judge sentenced him to death. His conviction was affirmed on direct appeal. Applicant’s writ of certiorari to the U.S. Supreme Court on direct appeal was denied on March 20, 1995. He then filed his original application for a writ of habeas corpus with the convicting court on Oct. 14, 1997, and this court denied relief on Sept. 16, 1998. Applicant’s request for federal habeas corpus relief was denied by the federal district court on Sept. 19, 2003. The trial court set applicant’s execution date for March 23, 2005. On March 22, 2005, this court received a second, subsequent writ application. The court granted applicant’s motion for a stay of execution to determine whether applicant’s current Penry claim meets the requirements of Texas Code of Criminal Procedure Article 11.071 5(a)(1). HOLDING:The application for writ of habeas corpus is dismissed. The jury charge in applicant’s trial, unlike the jury instructions in Penry v. Johnson, 532 U.S. 782 (2001) (Penry II), Tennard v. Dretke, 542 U.S. ___, 124 S.Ct. 2562 (2004), and Smith v. Murray, 477 U.S. 527 (1986), contained a fourth special issue, which focused exclusively upon mitigating evidence. In this case, the jury was specifically asked whether the mitigating evidence and jury’s assessment of applicant’s moral culpability raised any reasonable doubt as to whether the death penalty was the appropriate punishment. Here, before the jury could ever even consider any nullification action, it was asked an affirmative, highly focused question: After considering any and all mitigating evidence and the applicant’s level of culpability, his character, background, and the circumstances of the offense, is the penalty of death the appropriate punishment? With its “Yes” answer, the jury unanimously found, beyond a reasonable doubt, that death was the appropriate penalty. This jury, therefore, was clearly and unequivocally capable of giving effect to mitigating evidence in its answer to the question. The nullification problem identified in Penry II never came into play, because the jury had already explicitly found that, regardless of any and all mitigating evidence, death was the appropriate punishment. In Penry II, the U.S. Supreme Court held that “the key under Penry I is that the jury be able to”consider and give effect to [a defendant's mitigating] evidence in imposing sentence.’” In Penry II, the Supreme Court disapproved of an instruction that the jury simply “nullify” special issues within a verdict form rather than specifically consider mitigation evidence on its own merits. That problem does not exist in this case, the court finds. Although the constitutional concerns set out in Penry II could have arisen in this case had the jury answered the question with “No,” it did not do so. Any claim that the jurors would have faced a dilemma in answering the first special issue “falsely” simply to give effect to applicant’s mitigating evidence never arose. There is no reasonable likelihood that the jury in this particular case was, in fact, faced with the dilemma denounced in Penry II, Tennard or Smith. A habeas applicant cannot establish a constitutional violation simply by demonstrating that an allegedly erroneous jury instruction could have or might have affected some hypothetical jury. The court concludes that the jury could and did have an adequate vehicle to express its consideration of applicant’s mitigating evidence. “Only if we could conclude that a reasonable jury would have falsely answered the fourth special issue with a”Yes’ response even though it had found that the mitigating evidence raised a reasonable doubt that the death penalty was the appropriate punishment-because it was unwilling to”falsely’ change its answer to the first special issue could we conclude that this special issue and the accompanying instructions are covered by and possibly infirm under Penry II, Tennard, and Smith.” “Therefore, we hold that, as a matter of Texas statutory law, this subsequent application does not contain “sufficient specific facts” that establish that applicant’s current claim is cognizable under the Penry II, Tennard, and Smith line of cases even if we were to decide that this trio of cases created a new legal claim that was unavailable on the date applicant filed his previous writ application. Under Texas statutory law, we are barred from considering the merits of applicant’s subsequent writ.” OPINION:Per curiam. DISSENT:Tom Price, J.; Holcomb, J., joined. “I disagree with the majority’s conclusion that the applicant has not met the requirements of Article 11.071, Section 5. I respectfully dissent.”

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