









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





WR-50,823-02


EX PARTE KENNETH EUGENE FOSTER, JR.




ON APPLICATION FOR WRIT OF HABEAS CORPUS
IN CAUSE NO. 96-CR-5255 FROM THE

186TH DISTRICT COURT OF BEXAR COUNTY



Per Curiam. Dissenting statement by Judge Price and joined by Johnson and Holcomb,
JJ.  Hervey, J., not participating.

ORDER


	This is a subsequent application for writ of habeas corpus filed pursuant to Texas
Code of Criminal Procedure, Article 11.071, Section 5.
	Applicant was convicted of capital murder on May 1, 1997.  We affirmed the
conviction and sentence on direct appeal.  Foster v. State, No. 72,853 (Tex. Crim. App.
June 30, 1999).  On April 28, 1999, applicant filed his initial application for writ of habeas
corpus pursuant to Article 11.071.  We denied relief.  Ex parte Foster, No. WR-50,823-01
(Tex. Crim. App. March 6, 2002).

	Applicant now raises five claims.  He argues that there is new evidence which was
previously unavailable to him that shows he is not liable for the murder, that no rational jury
could have found him guilty, that no jury could have found he anticipated a life would be
taken, and he is actually innocent of the capital murder of Michael LaHood.  He also claims
that the opinion of the United States Court of Appeals for the 5th Circuit, in denying him
relief from this conviction, nonetheless created a new legal theory which was previously
unavailable to him when he filed his original application for writ of habeas corpus.
	We have reviewed applicant's claims and they do not meet the requirements of
Article 11.071, Section 5, for consideration of subsequent claims.  This application is
dismissed as an abuse of the writ; the motion for stay of execution is denied.
	IT IS SO ORDERED THIS THE 7TH DAY OF AUGUST, 2007.
Do Not Publish
