EX PARTE KARL EUGENE CHAMBERLAIN (Dissenting Statement)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-46,058-05

EX PARTE KARL EUGENE CHAMBERLAIN, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

IN CAUSE NO. 93-48383 FROM THE

291ST DISTRICT COURT OF DALLAS COUNTY

Price, J., filed a dissenting statement.

DISSENTING STATEMENT

In Ex parte Chi, (1) I argued that a challenge to the Texas protocol for lethal injection was cognizable in a post-conviction application for writ of habeas corpus brought pursuant to Article 11.071. (2) My view did not carry the day. That being that case, we should entertain the applicant's original writ application (which is not subject to the abuse-of-the-writ provisions of Article 11.071, Section 5). The applicant offers new facts with respect to the protocol for administering the initial anesthetic drug that were not available two days ago when the plurality in Chi failed to address whether a lethal injection claim could be entertained in an original writ. Although Judge Cochran addressed that possibility, she rejected the applicant's claim on the grounds that she did not believe Chi had made out a prima facie case. In light of the new facts presented by the instant application, the Court should now stay the applicant's impending execution, entertain his original writ, and consider whether, in light of the new evidence presented, he has pled facts which, if true, would entitle him to extraordinary relief. Because the Court will not, I once again dissent.

Filed: June 11, 2008

Do Not Publish

1. __ S.W.3d __ (Tex. Crim. App., No. AP-75,390, delivered June 9, 2008)

2. Tex. Code Crim. Proc. art. 11.071.