EX PARTE ANDRE LEE THOMAS (other)

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS 

NO. WR-69,859-02
EX PARTE ANDRE LEE THOMAS
ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE
NO. 51858 IN THE 15TH JUDICIAL DISTRICT COURT 
GRAYSON COUNTY 
Per Curiam. 
O R D E R

This is a subsequent application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071, 5.

In March 2005, a jury convicted Applicant of the offense of capital murder. The jury answered the special issues submitted under Article 37.071 of the Texas Code of Criminal Procedure, and the trial court, accordingly, set punishment at death. This Court affirmed Applicant's conviction and sentence on direct appeal. Thomas v. State, No. AP-75,218 (Tex. Crim. App. October 8, 2008). Applicant filed his initial post-conviction application for writ of habeas corpus in the trial court on June 18, 2007. This Court denied relief. Ex parte Thomas, No. WR-69,859-01 (Tex. Crim. App. March 18, 2009).

Applicant presents three allegations in his application in which he essentially argues that his recent blindness makes his death sentence unconstitutional. This application should be dismissed.

Article 11.071, 5(a)(1), requires only that "the current claims and issues have not been and could not have been presented previously in a timely . . . application . . . because the factual or legal basis for the claim was unavailable[.]" But applicant's claim is not a claim on which relief can be granted. Article 11.14(1) requires that an application "must state substantially . . . [t]hat the person for whose benefit the application is made is illegally restrained in his liberty[.]" This application does not. Nor does the application meet the requirement of Article 11.40 that a prisoner be discharged "if no legal cause be shown for the . . . restraint, or if it appear that the . . . restraint, though at first legal, cannot for any cause be lawfully prolonged[.]"

Applicant alleges that due to his blindness there is no longer a probability that he would commit criminal acts of violence that would constitute a continuing threat to society. See Art. 37.071, 2(b)(1). But our law imposes no such requirement. The question was whether there was such a probability when he was convicted. The jury found that there was, and this application contains no claim that would make the judgment of the trial court improper. Accordingly, the application is dismissed.

IT IS SO ORDERED THIS THE 5TH DAY OF MAY, 2010.

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