Opinion
WR-59,201-04
12-14-2022
EX PARTE RICHARD VASQUEZ, Applicant
Do Not Publish
ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS IN CAUSE NO. 98-CR-0730-E IN THE 148TH JUDICIAL DISTRICT COURT NUECES COUNTY
ORDER
PER CURIAM.
This is a subsequent application for a writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071 § 5.
Unless otherwise stated, all subsequent references to "articles" in this order refer to the Texas Code of Criminal Procedure.
In June 1999, a jury found Applicant guilty of the offense of capital murder for the death of four-year-old M.L., his girlfriend's daughter from another relationship. The jury answered the special issues submitted pursuant to 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. Vasquez v. State, No. AP-73,461 (Tex. Crim. App. Oct. 3, 2001) (not designated for publication). This Court denied relief on Applicant's initial post-conviction application for a writ of habeas corpus, and we dismissed a subsequent writ application in the same order. Ex parte Vasquez, Nos. WR-59,201-01 & WR-59,201-02 (Tex. Crim. App. Jan. 26, 2005) (not designated for publication). We remanded Applicant's second subsequent writ application, which contained three claims, to the convicting court for findings of fact, conclusions of law, and a recommendation as to the appropriate disposition. After the writ's return to this Court, we dismissed the claim that Applicant had withdrawn in the court below and denied relief on his two remaining claims. Ex parte Vasquez, No. 59,201-03 (Tex. Crim. App. Aug. 25, 2021) (not designated for publication).
On January 12, 2022, Applicant filed in the trial court this, his third "Subsequent Application for Post-Conviction Writ of Habeas Corpus" ("Subsequent Application"). Therein, Applicant raises six claims alleging that he is entitled to habeas corpus relief from his conviction and sentence because: (1) the State unknowingly or knowingly presented at trial false evidence that the victim had cocaine in her bloodstream at the time of the offense (Claims 1 and 2); (2) the State failed to disclose to Applicant material exculpatory evidence concerning its cocaine evidence, in violation of Brady v. Maryland, 373 U.S. 83 (1963) (Claim 3); (3) Applicant is actually innocent of capital murder and the death penalty (Claim 4); and (4) trial counsel and prior writ counsel rendered constitutionally ineffective assistance under Strickland v. Washington, 466 U.S. 668 (1984) (Claims 5 and 6). On January 26, 2022, Applicant filed in the convicting court his "First Amended Subsequent Application for Post-Conviction Writ of Habeas Corpus" ("First Amended Subsequent Application"). The convicting court deemed the documents to be subsequent writ applications and forwarded them to this Court for review under Article 11.071, Section 5.
Applicant raises no new claims in his First Amended Subsequent Application, nor does he expand therein upon a claim already raised. Therefore, we find that Applicant's First Amended Subsequent Application is truly an amended pleading rather than a new, additional subsequent writ application, and we treat it as replacing his January 12 Subsequent Application.
We have reviewed the First Amended Subsequent Application and find that Applicant has failed to satisfy the requirements of Article 11.071, § 5(a). Accordingly, we dismiss the subsequent application as an abuse of the writ without considering the merits of the claims.
IT IS SO ORDERED.