Opinion
NO. WR-62,099-01 NO. WR-62,099-02 NO. WR-62,099-08
10-02-2017
EX PARTE ROBERT LYNN PRUETT, Applicant
ON APPLICATIONS FOR POST-CONVICTION WRITS OF HABEAS CORPUS IN CAUSE NOS. B-01-M015-0-PR-B-1 , B-01-M015-0-PR-B-2, AND B-01-M015-0-PR-B-7 IN THE 156 JUDICIAL DISTRICT COURT BEE COUNTY Per curiam. ALCALA, J., filed a concurring and dissenting opinion. RICHARDSON, J., not participating. ORDER
We have before us a subsequent application for a writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071 § 5, and suggestions to reconsider applicant's initial writ of habeas corpus application and first subsequent writ application.
In April 2002, a jury found applicant guilty of the 1999 capital murder of Daniel Nagle, who was a correctional officer at TDCJ's McConnell Unit where applicant was incarcerated. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071, and the trial court, accordingly, set applicant's punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Pruett v. State, No. AP-74,370 (Tex. Crim. App. Sept. 22, 2004)(not designated for publication).
This Court denied relief on applicant's initial application for a writ of habeas corpus. Ex parte Pruett, 207 S.W.3d 767 (Tex. Crim. App. 2005). And it dismissed applicant's first subsequent application because it failed to satisfy the requirements of Article 11.071 § 5(a). Ex parte Pruett, No. WR-62,099-02 (Tex. Crim. App. Dec. 10, 2014)(not designated for publication). On April 1 and 8, 2015, applicant filed in this Court a motion for leave to file a petition for a writ of prohibition and a petition for a writ of prohibition. This Court denied applicant leave to file the writ of prohibition on April 20, 2015.
In his second subsequent application for a writ of habeas corpus (our -04), filed in April 2015, applicant asserted that he was entitled to relief under Texas Code of Criminal Procedure Article 11.073 because, had the results of DNA testing conducted pursuant to a Chapter 64 motion been available at the time of trial, it was likely that the jury would not have convicted him. This Court denied applicant relief on that application. Ex parte Pruett, 458 S.W.3d 535 (Tex. Crim. App. 2015).
In his third subsequent writ application (our -05), also filed in April 2015, applicant claimed that he was entitled to relief under Texas Code of Criminal Procedure Article 11.073 because a 2009 National Academy of Sciences report could have discredited the testimony of a State's witness regarding tape comparisons. Applicant claimed that if the report had been available, then the jury would not have convicted him. This Court determined that applicant had failed to satisfy the requirements of Article 11.071 § 5 and Article 11.073(c), and we dismissed his application. Ex parte Pruett, 458 S.W.3d 537 (Tex. Crim. App. 2015).
On March 14, 2016, and July 14, 2016, respectively, applicant filed in the trial court his fourth (our -06) and fifth (our -07) subsequent applications for writs of habeas corpus. In his fourth subsequent application, applicant asserted that he is actually innocent and that the State denied him due process by failing to disclose deals made with witnesses and failing to correct false testimony at trial. In his fifth subsequent application, he asserted that his due process right to a fundamentally fair trial was violated by the State's use of false forensic science testimony (tape comparisons). In both cases, this Court found that applicant had failed to satisfy the requirements of Article 11.071 § 5, and we dismissed them. Ex parte Pruett, Nos. WR-62,099-06 and WR-62,099-07 (Tex. Crim. App. Aug. 11, 2016)(not designated for publication).
On September 7, 2017, applicant filed in the trial court his sixth subsequent application for a writ of habeas corpus. In this application, applicant asserts that the State denied him due process by failing to disclose deals made with witnesses and failing to correct false testimony at trial, that the State failed to preserve evidence, and that he is actually innocent.
After reviewing this application, we find that he has failed to satisfy the requirements of Article 11.071 § 5. Accordingly, we dismiss this application as an abuse of the writ without reviewing the merits of the claims raised. Art. 11.071 § 5(c).
We have also reviewed applicant's suggestions that this Court reconsider two claims raised in his initial writ application and two claims raised in his first subsequent writ application. Regarding the initial writ application, applicant would have us reconsider claims that his due process rights were violated by the State's failure to provide the notice required by a pre-trial discovery order and by the State's admission of expert testimony regarding tape comparisons. Regarding the first subsequent writ application, applicant would have this Court re-evaluate our holding in Ex parte Graves, 70 S.W.3d 103 (Tex. Crim. App. 2002), to allow consideration on the merits of two procedurally barred claims. We decline to reconsider the claims raised in those applications.
IT IS SO ORDERED THIS THE 2 DAY OF OCTOBER, 2017. Do not publish