Opinion
No. WR-59,101-02
Filed: November 5, 2008. DO NOT PUBLISH.
On application for Post-Conviction Writ of Habeas Corpus from Cause No. 99-F-0506-005 in the 5th Judicial District Court of Bowie County.
ORDER
This is a subsequent application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071 § 5. In October 2001, a jury found applicant guilty of the offense of capital murder. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071 in favor of the State, and the convicting court, accordingly, set applicant's punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Speer v. State, No. AP-74,253 (Tex.Crim.App. October 8, 2003) (not designated for publication). Applicant filed his initial post-conviction application for writ of habeas corpus with the convicting court on October 30, 2001. This Court denied applicant relief. Ex parte Speer, No. 59,101-01 (Tex.Crim.App. June 30, 2004) (not designated for publication). Applicant filed this subsequent application with the convicting court on July 8, 2008. In this application, applicant presents a claim under Brady v. Maryland, 373 U.S. 83 (1963), which requires the State to turn over evidence favorable to an accused where the evidence is material to either guilt or punishment. Brady evidence also includes evidence that can be used to im peach the S tate's witn esses. U nited States v. Bagley, 47 3 U .S. 6 6 7, 676-77 (19 8 5); Giglio v. United States, 405 U.S. 150, 154 (1972). Applicant asserts that prison investigators used another inmate as an informant to testify against him. He alleges that this other inmate continually received benefits from the prison system in exchange for his testimony but that the State never made the extent of its special relationship with the informant known to Applicant. Applicant also argues that this claim meets the requirements of Article 11.071, § 5 (a)(1) because it could not have been presented previously in Applicant's initial writ application for the reason that the factual basis of the claim was not available. We have reviewed the application and cannot determine on this record whether the factual basis for the claim was unavailable on the date that applicant filed his previous application. Therefore, this cause is remanded to the trial court so that the habeas corpus record can be supplemented with evidence relating to the Section 5 bar. Specifically, applicant shall have the opportunity to show when and how he obtained the alleged Brady evidence at issue and whether he exercised due diligence to obtain this evidence at the earliest opportunity. If appropriate, the trial court shall enter factual findings and credibility determ inations. Following receipt of this additional information, the trial court shall forward the supplemented record to this Court so that we may determine whether the allegation satisfies the requirements of Article 11.071, § 5. This application for habeas corpus relief will be held in abeyance pending the trial court's compliance with this order. The trial court shall receive evidence on the issue presented within 60 days of the date of this order. A supplemental transcript shall be returned to this Court within 90 days of the date of this order. IT IS SO ORDERED THIS THE 5TH DAY OF NOVEMBER, 2008.
In the event any continuances are granted, copies of the order granting the continuance should be provided to this Court.
Any extensions of this time period should be obtained from this Court.