EX PARTE HELIBERTO CHI (original)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-61,600-04

EX PARTE HELIBERTO CHI, Applicant

ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS AND MOTION FOR STAY OF EXECUTION FROM CAUSE NO. 0805594
IN THE CRIMINAL DISTRICT COURT NUMBER THREE
HARRIS COUNTY

Per Curiam. Price, J., filed a concurring statement. Womack, J., not participating.

O R D E R

We have before us a subsequent application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071, § 5, and a motion for stay of execution.

In November 2002, 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, and the trial court, accordingly, set applicant's punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Chi v. State, No. AP-74,492 (Tex. Crim. App. May 26, 2004) (not designated for publication). Pursuant to Article 11.071, § 4A, applicant filed in the convicting court his initial post-conviction application for writ of habeas corpus in which he raised seven claims, including a claim alleging the violation of his rights under Article 36 of the Vienna Convention. The convicting court recommended that we deny his claims. We adopted the trial court's findings of fact and conclusions of law and denied habeas relief. Ex parte Chi, No. WR-61,600-01 (Tex Crim. App. Apr. 27, 2005)(not designated for publication).

Applicant later filed a subsequent application pursuant to Article 11.071, § 5, and a writ of prohibition, in which he challenged the constitutionality of the drug protocol used to carry out executions. After filing and setting both cases, this Court dismissed the subsequent application and denied the writ of prohibition. Ex parte Chi, S.W.3d , Nos. AP-75,930 and 931 (Tex. Crim. App. June 9, 2008).

In this newly filed subsequent application, applicant asserts that he is entitled to a stay of execution and a judicial review and consideration of whether the violation of his rights under Article 36 of the Vienna Convention prejudiced him. He asserts that this review is mandated by the Avena judgment of the International Court of Justice, the Bilateral Treaty of Friendship, Commerce, and Consular Rights with Honduras, and the United States Supreme Court's opinion in Medellin v. Texas, 552 U.S. (2008).

We have reviewed applicant's subsequent application and find that it does not meet the dictates of Article 11.071, § 5, and should be dismissed. Art. 11.071, § 5(a). Applicant's motion for stay of execution is denied.

IT IS SO ORDERED THIS THE 6TH DAY OF AUGUST, 2008.

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