EX PARTE MICHAEL ROY TONEY (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

WR-51,047-03

EX PARTE MICHAEL ROY TONEY

ON APPLICATION FOR WRIT OF HABEAS CORPUS

CAUSE NO. 0676220D IN THE 297TH DISTRICT COURT

TARRANT COUNTY

Per Curiam. MEYERS, J., dissents.

O R D E R

This is a subsequent application for writ of habeas corpus filed pursuant to the provisions of Article 11.071, Tex. Code Crim. Proc.

On May 25, 1999, Applicant was convicted of the offense of capital murder. The jury answered the special issues submitted pursuant to Article 37.071, Tex. Code Crim. Proc., and the trial court, accordingly, set punishment at death. This Court affirmed Applicant's conviction and sentence on direct appeal. Toney v. State, No. AP-73,535 (Tex. Crim. App. May 22, 2002). In Applicant's initial writ, Ex parte Toney, No. WR-51,047-01, relief was denied on June 26, 2002. Applicant's first subsequent application, Ex parte Toney, No. WR-51,047-02, was dismissed on October 27, 2004.

Applicant presented seven allegations in his application. We held that these allegations satisfied the requirements of Article 11.071, section 5, of the Texas Code of Criminal Procedure, and we remanded them to the trial court for consideration. After remand, the trial court signed "Agreed Proposed Findings of Fact & Conclusions of Law" recommending that relief be granted on Applicant's Brady claims. Brady v. Maryland, 373 U.S. 83 (1963). Accordingly, Claims One through Five are filed and set, and relief is granted in a separate opinion. See Ex parte Toney, AP-76,056 (Tex. Crim. App. December 17, 2008). Claims Six and Seven are denied.

IT IS SO ORDERED THIS THE 17TH DAY OF DECEMBER, 2008.

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