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Click here for the full text of this decision FACTS:In 1997, Pedro Jose Santana pleaded guilty to the first-degree felony offense of aggravated robbery. The trial judge entered an affirmative deadly weapon finding and sentenced Santana to 40 years of imprisonment. Santana appealed. In an unpublished opinion, the 14th Court of Appeals affirmed Santana’s conviction. Santana filed his first application for a writ of habeas corpus in 2003. In his sole ground for relief, Santana claimed that his appellate counsel rendered ineffective assistance for failing to challenge the indictment on direct appeal. The trial court recommended denying relief, finding that Santana “fail[ed] to show that the conduct of appellate counsel fell below an objective standard of reasonableness and that, but for counsel’s alleged deficient conduct, there is a reasonable probability that the result of the proceeding would have been different.” On Sept. 3, 2003, the CCA adopted the trial court’s findings and denied relief. Santana later filed a second application in which he alleged that he is actually innocent of the offense of aggravated robbery with a deadly weapon. He claimed that he only attempted to commit the offense. The trial judge recommended that Santana’s application be dismissed under Texas Code of Criminal Procedure Art. 11.07, �4. The CCA filed and set this case for submission to decide whether Santana’s subsequent application was procedurally barred under Art. 11.07, �4, when his initial application presented only a claim of ineffective assistance of appellate counsel. HOLDING:The CCA dismissed Santana’s subsequent application for a writ of habeas corpus. Section 4 of Art. 11.07 restricts habeas applicants to “one bite of the apple” except when “the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application” or “but for a violation of the United States Constitution[,] no rational juror could have found the applicant guilty beyond a reasonable doubt.” Section 4, the CCA stated, applies after the final disposition of a prior application that challenged the same conviction. The CCA held that when an applicant presents only a claim of ineffective assistance of appellate counsel on direct appeal in an initial application, it constitutes a challenge to the conviction under �4. Thus, the CCA held that to prevail, “Santana must therefore show that his current claim � that he is actually innocent of aggravated robbery � meets the requirements provided in subsections (a)(1) or (2) [the two exceptions to Art. 11.07, �4].” But the CCA held that Santana failed to qualify for either of the statutory exceptions. OPINION:Keasler, J., delivered the opinion of the court in which Keller, P.J., and Meyers, Price, Hervey and Cochran, JJ., joined. CONCURRENCE:Womack, Johnson, and Holcomb, JJ., concurred.

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