EX PARTE CHARLES DEAN HOOD (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-41,168-09

EX PARTE CHARLES DEAN HOOD

ON APPLICATION FOR WRIT OF HABEAS CORPUS

IN CAUSE NO. W296-80233-90 IN THE

296TH DISTRICT COURT OF COLLIN COUNTY

Per Curiam.

ORDER

We have before us what purports to be a subsequent application for writ of habeas corpus filed pursuant to Article 11.071 § 5. The basis for this filing is applicant's assertion that he was denied a fair trial because of an alleged relationship between the trial judge and the prosecutor.

Applicant was convicted of the capital murder of Ronald Williamson and Tracie Lynn Wallace. The jury answered the special issues in such a manner that a sentence of death was imposed on September 7, 1990. This Court affirmed the conviction and sentence on direct appeal. Hood v. State, No. AP-71,167 (Tex. Crim. App. November 24, 1993)(not designated for publication). Applicant's initial application for writ of habeas corpus was denied. Ex parte Hood, No. WR-41,168-01 (Tex. Crim. App. April 21, 1999)(not designated for publication). Applicant filed a subsequent application in the trial court on May 24, 2004. The subsequent application was dismissed. Ex parte Hood, No. WR-41,168-02 (Tex. Crim. App. April 13, 2005)(not designated for publication). Applicant filed a second subsequent application on June 22, 2005. We remanded to the convicting court for resolution of the claim. When the case was returned to this Court we held that applicant had, in fact, not met the requirements of Article 11.071 § 5, for consideration of subsequent claims and dismissed his application. Ex parte Hood, 211 S.W.3d 767 (Tex. Crim. App. 2007).

On April 16, 2008, the judge of the convicting court set applicant's execution date for June 17, 2008. On June 12, 2008, applicant filed another subsequent application for writ of habeas corpus and an original application for writ of habeas corpus. In the applications, applicant asserted that he was denied a fair trial because of an alleged relationship between the trial judge and the prosecutor that applicant claimed was "common knowledge" at the time of trial. We dismissed the Article 11.071 application and denied leave to file the original application. Ex parte Hood, Nos. WR-41,168-04 & WR-41,168-05 (Tex. Crim. App. June 16, 2008)(not designated for publication). On June 17, 2008, this Court denied a second original application for writ of habeas corpus. Ex parte Hood, No. WR-41,168-06 (Tex. Crim. App. June 17, 2008)(not designated for publication). However, by the time all of the litigation was complete, applicant's warrant of execution was close to expiring, and the Texas Department of Criminal Justice was unable to complete its duties. Applicant's execution date was reset to September 10, 2008.

On August 19, 2008, applicant filed in the County Court at Law of Collin County, pursuant to Texas Rule of Civil Procedure 202, a petition to take pre-suit investigatory depositions regarding the alleged affair between the trial judge and the prosecutor in applicant's case. On August 20, 2008, the County Court at Law, viewing the matter as more akin to a writ for extraordinary relief in a felony case, or alternatively, as a petition to gain information needed to file a federal lawsuit under 42 U.S.C. § 1983, ordered the case transferred to district court. The district judge assigned to hear the civil case ordered that, to any extent the petition for depositions is in fact a writ of habeas corpus, the matter should be severed and a copy of the petition filed in the 296th District Court - the court in which applicant was convicted.

Upon receipt of the "filing," the clerk of the 296th District Court dutifully labeled the filing a subsequent writ application and forwarded it to this Court as required by Article 11.071 § 5(b). To the extent this document can be considered a writ application, it raises the exact claim previously raised in applicant's third subsequent writ application. Therefore, it does not meet the requirements of Article 11.071 § 5 for the consideration of subsequent claims. To the extent the filing is not, and never was intended to be, a subsequent writ application, it is not properly before this Court. Applicant's filing is dismissed.

IT IS SO ORDERED THIS THE 5TH DAY OF SEPTEMBER, 2008.

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