           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                     WR-63,590-03



                        EX PARTE ROBERT GENE WILL II



              ON APPLICATION FOR WRIT OF HABEAS CORPUS
              CAUSE NO. 862715-C IN THE 185 TH DISTRICT COURT
                             HARRIS COUNTY



       Per curiam.

                                       ORDER

       This is a subsequent application for writ of habeas corpus filed pursuant to the

provisions of Texas Code of Criminal Procedure Article 11.071, Section 5.

       On January 23, 2002, Applicant was convicted 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. Will v. State, No. AP-74,306
                                                                                             Will–2

(Tex. Crim. App. Apr. 21, 2004) (not designated for publication). We denied relief on

Applicant’s initial post-conviction application for writ of habeas corpus, Ex parte Will, No.

WR-63,590-01 (Tex. Crim. App. Mar. 29, 2006) (not designated for publication), and

dismissed his second such application, Ex parte Will, No. WR-63,590-02 (Tex. Crim. App.

Sept. 12, 2007) (not designated for publication). We received Applicant’s instant post-

conviction application for writ of habeas corpus on September 23, 2013.

       Applicant presents three allegations in the instant application. In his first allegation,

Applicant contends that he is actually innocent. In his second allegation, Applicant asserts

that the State violated his due process rights under Brady v. Maryland1 by withholding

material exculpatory evidence. In his third allegation, Applicant argues as an alternative to

his Brady claim that, if the State did not withhold the evidence at issue, then his trial and

appellate counsel were constitutionally ineffective for failing to discover, investigate, and

present the disclosed exculpatory evidence.

       After determining that we might consider this subsequent state application,2 see Ex

parte Soffar,143 S.W.3d 804 (Tex. Crim. App. 2004), we reviewed the application and found

that Applicant’s first and second allegations might satisfy the requirements of Texas Code



       1
               373 U.S. 83 (1963).
       2
                 The record reflects that Applicant is currently challenging his conviction in Cause
No. H-07-CV-1000, styled Robert Gene Will II v. William Stephens, in the United States District
Court for the Southern District of Texas, Houston Division. The record also reflects that the
federal district court has entered an order staying its proceedings for Applicant to return to state
court to consider his current unexhausted claims.
                                                                                       Will–3

of Criminal Procedure Article 11.071, Section 5(a). Accordingly, we remanded this cause

to the trial court for consideration of Applicant’s first and second allegations.

       The trial court, without holding an evidentiary hearing, adopted the State’s amended

proposed findings of fact and conclusions of law recommending that relief be denied because

Applicant had failed to establish his actual innocence or that the State committed a due

process violation under Brady.

       This Court has reviewed the record with respect to Applicant’s allegations. We adopt

the trial judge’s amended findings and conclusions, with the following exceptions. We do

not adopt Factual Finding Number 70, which reads, in pertinent part, that “[t]he Court finds

unpersuasive trial counsel Cunningham’s habeas affidavit assertion that he would have called

[David] Cruz to testify in light of the applicant’s inability to corroborate Cruz’s assertions

with documentary evidence.” We also decline to adopt Factual Findings Numbers 76, 89,

and 92, and Conclusions of Law Numbers 2 and 6, to the extent they state that the evidence

is not favorable under Brady. Based upon the trial court’s amended findings and conclusions

and our own review, we deny relief.

       IT IS SO ORDERED THIS THE 25TH DAY OF NOVEMBER, 2015.

Do Not Publish
