        IN THE COURT OF CRIMINAL APPEALS
                    OF TEXAS
                                   NO. WR-62,099-04



                  EX PARTE ROBERT LYNN PRUETT, Applicant



  ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS
 AND MOTION TO STAY THE EXECUTION IN CAUSE NO. B-D1-MO15-PR-B
              IN THE 156 TH JUDICIAL DISTRICT COURT
                             BEE COUNTY

       Per curiam. R ICHARDSON, J., not participating.

                                      OPINION

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

provisions of Texas Code of Criminal Procedure Article 11.071 § 5 and a motion to stay

applicant’s execution.

       In April 2002, a jury found applicant guilty of the offense of capital murder. The

jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure

Article 37.071, and the trial court, accordingly, set applicant’s punishment at death. This
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Court affirmed applicant’s conviction and sentence on direct appeal. Pruett v. State, No.

AP-74,370 (Tex. Crim. App. Sept. 22, 2004)(not designated for publication). Applicant

filed his initial application for a writ of habeas corpus in the convicting court in February

2004, and this Court subsequently denied relief. Ex parte Pruett, 207 S.W.3d 767 (Tex.

Crim. App. 2005). Applicant filed a subsequent application for a writ of habeas corpus in

the trial court on July 14, 2014. This Court determined that the subsequent application

failed to satisfy the requirements of Article 11.071 § 5(a), and the Court dismissed it. Ex

parte Pruett, No. WR-62,099-02 (Tex. Crim. App. Dec. 10, 2014)(not designated for

publication). On April 1 and 8, 2015, applicant filed in this Court a motion for leave to

file a petition for a writ of prohibition and a petition for a writ of prohibition. The Court

denied applicant leave to file the writ of prohibition on April 20, 2015.

       On April 17, 2015, applicant filed in the trial court his second subsequent

application for a writ of habeas corpus. In that application, applicant asserted that he was

entitled to relief under Texas Code of Criminal Procedure Article 11.073 because, had the

results of DNA testing conducted pursuant to a Chapter 64 motion been available at the

time of trial, it was likely that the jury would not have convicted him. Applicant cannot

obtain relief on this claim.

       In May 2013, applicant filed in the trial court a motion for post-conviction DNA

and palm-print testing under Chapter 64 of the Texas Code of Criminal Procedure. The

trial court granted that testing. However, the results of the testing were inconclusive, and
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the trial judge found that it was not reasonably probable that applicant would have been

acquitted had the new results been available at trial. Applicant appealed that decision to

this Court, and, after reviewing the issue de novo, we affirmed the judgment of the trial

court. Pruett v. State, No. AP-77,037 (Tex. Crim. App. Oct. 22, 2014)(not designated for

publication), cert. denied, Pruett v. Texas, No. 14-8097 (Mar. 30, 2015).

       Article 11.073, by its language, applies to relevant scientific evidence that was not

available to be offered by a convicted person at the convicted person’s trial. Article

11.073 provides that a court may grant relief on an application for a writ of habeas corpus

if a person (1) files an application containing specific facts indicating that (A) relevant

scientific evidence is currently available that was not available at the time of trial because

it was not ascertainable, and (B) the scientific evidence would be admissible at trial, and

(2) the court makes the above findings and also finds that, had the evidence been

presented at trial, “on the preponderance of the evidence the person would not have been

convicted.” Because both the trial court and this Court during the 2013 Chapter 64

proceedings found that the inconclusive DNA evidence did not support a reasonable

probability that applicant would have been acquitted had that evidence been available at

his trial, applicant is foreclosed from obtaining relief under Article 11.073. Therefore,

applicant is denied relief in this subsequent writ application, and his motion to stay his

execution is denied. No motions for rehearing will be entertained, and the clerk of this

Court is instructed to issue mandate immediately.
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Publish
Delivered:   April 24, 2015
