EX PARTE JEDIDIAH ISAAC MURPHY (Other)

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

WR-70,832-02
EX PARTE JEDIDIAH ISAAC MURPHY

ON APPLICATION FOR WRIT OF HABEAS CORPUS

CAUSE NO. W00-02424-M(B) IN THE 194TH DISTRICT COURT

DALLAS 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 June 2001, 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. Murphy v. State, 112 S.W.3d 592 (Tex. Crim. App. 2003). This Court denied relief on Applicant's initial post-conviction application for writ of habeas corpus. Ex parte Murphy, No. WR-70,832-01 (Tex. Crim. App. March 25, 2009)(not designated for publication). Applicant later filed this subsequent application. This Court dismissed the second and third claims in Applicant's subsequent writ application pursuant to Article 11.071, § 5 of the Texas Code of Criminal Procedure. Ex parte Murphy, No. WR-70,832-02 (Tex. Crim. App. October 6, 2010)(not designated for publication). This Court remanded Applicant's subsequent writ application to the trial court only with regard to the first claim in which Applicant alleged that the State suppressed evidence and presented false testimony. Id. This Court ordered the trial court to make findings of fact and conclusions of law regarding whether or not the factual basis of the first claim was ascertainable through the exercise of reasonable diligence on or before the date the initial application was filed. Id. If the trial court determined that the factual basis of the claim was not ascertainable through the exercise of reasonable diligence on or before the date the initial application was filed, then this Court directed the trial court to determine the merits of the claim. Id.

Following remand, the trial court held a hearing in February 2011. Following the hearing, the trial court signed two conflicting orders, one adopting the State's proposed findings and conclusions recommending that the claim be either dismissed or denied, and the other recommending a new trial on punishment. This Court again remanded the application for the trial court to clarify whether it intended to recommend a dismissal, a denial, or the granting or relief. Ex parte Murphy, No. WR-70,832-02 (Tex. Crim. App. November 23, 2011)(not designated for publication). Following the second remand, the trial court made supplemental findings in which it stated that it "intended to adopt the State's proposed findings that were signed by the [trial court] on May 10, 2011," and that it "had no intention of recommending a new punishment hearing in this case." The trial court found that Applicant's first claim was "ascertainable through the exercise of reasonable diligence on or before the date Applicant's initial application was filed." The trial court recommended that the claim be dismissed, or alternatively denied.

We have reviewed the record of the hearing and the trial court's supplemental findings of fact on Applicant's first claim. We have also reviewed the State's proposed findings of fact and conclusions of law that were signed and adopted by the trial court on May 10, 2011. Based upon the trial court's findings and conclusions and our own review, we conclude that Applicant has failed to satisfy the requirements of Article 11.071,

§ 5 of the Texas Code of Criminal Procedure. Accordingly, we dismiss the application as an abuse of the writ without considering the merits of the claims.

IT IS SO ORDERED THIS THE 21ST DAY OF MARCH, 2012.

 

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