









IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

 



WR-56,197-02


EX PARTE LONNIE EARL JOHNSON




ON APPLICATION FOR WRIT OF HABEAS CORPUS
IN CAUSE NO. 573760 FROM THE

183RD DISTRICT COURT OF HARRIS COUNTY



Per Curiam. Johnson, 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 asserts the State withheld
material exculpatory evidence from him before trial and during appeal and post-conviction
review.
	Applicant was convicted of capital murder on November 17, 1994, for a double
homicide and robbery committed on August 15, 1990.  We affirmed the conviction and
sentence.  Johnson v. State, No. 72,046 (Tex. Crim. App. December 16, 1998) (opinion on
rehearing).  This Court denied relief on applicant's initial application for writ of habeas corpus
pursuant to Article 11.071.  Ex parte Johnson, WR-56,197-01 (Tex. Crim. App. October 8,
2003).
	We have reviewed the application.  We note that a similar claim was raised in the initial
application for writ of habeas corpus, that material exculpatory evidence within the
prosecutor's files was withheld by the State.  We adopted the convicting court's finding on that
issue "that the State's file was always open to the applicant's trial counsel, and that trial counsel
went to the State's office to inspect the file."  That finding is applicable here  because applicant
has not made a prima facie showing that the State withheld any evidence from its files.  Thus,
he has not shown that the "newly discovered" evidence is either newly available or withheld by
the State.  We find that applicant's claims 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.  Applicant's motion for stay of execution is denied.
	IT IS SO ORDERED THIS THE 20TH DAY OF JULY, 2007.
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