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Click here for the full text of this decision FACTS:Applicant was convicted of capital murder on April 9, 1994. The Court of Criminal Appeals affirmed the conviction and sentence. The court denied relief on his initial application for writ of habeas corpus and dismissed, as an abuse of the writ, his untimely subsequent application. On May 15, 2006, the court issued a stay of the execution to review applicant’s second subsequent application for writ of habeas corpus. The applicant advances an Eighth Amendment claim, asserting that he might suffer pain during the administration of the chemicals during lethal injection. HOLDING:“We have now reviewed this subsequent application and find that it should be dismissed. Our order of May 15th, 2006, staying the proceedings in this case is lifted.” OPINION:Per curiam. Cochran, J., filed a concurring statement in which Keller, P.J., and Keasler and Hervey, J.J., joined. Price, J. filed a dissenting statement in which Holcomb, J., joined. Johnson, J., filed a dissenting statement. Womack, J., dissents. CONCURRING STATEMENT:Cochran, J.; Keller, P.J., and Keasler, and Hervey, J.J., joined. “[A]pplicant has failed to produce any facts or scientific evidence that a scenario involving unnecessary pain and suffering by the use of TDCJ’s chemical protocol is anything other than speculation. I therefore join in the Court’s decision to lift the temporary stay of execution and to the dismissal of applicant’s subsequent petition for failing to make a prima facie showing of possible merit.” DISSENT:Tom Price, J.; Holcomb, J., joined. “It is manifestly unfair, in my estimation, to fault the applicant for a failure of proof without first affording him an opportunity to present evidence at a hearing, or through one of the other mechanisms that the statute allows for presentation of evidence, once it is determined that facts have been alleged, which, if true, may entitle the applicant to relief. It is not clear to me that the lethal injection protocol we use in Texas to execute capital offenders does not constitute cruel and unusual punishment. It is evident enough from the applicant’s pleadings that it might. I would not reject the applicant’s claim (assuming we can reach it) without affording the applicant an evidentiary forum to substantiate his claim.” DISSENT:Johnson, J.; “[B]oth the applicant and the Court are caught in a Catch-22; the challenge cannot be raised or heard until it is ‘imminent,’ yet it must be raised and heard as soon as the death date is set. Thus these important issues can never be reviewed. “Accepting arguendo that the current mixture of drugs does not violate constitutional protections, the issue must still be addressed. We cannot say that the protocol will never change. A different protocol may indeed violate constitutional guarantees. We will be then faced with the same legal issues we face today, and they will still be unresolved and unresolvable because such challenges will always be both unripe and over-ripe.”

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