









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. WR-49,164-04


EX PARTE DERRICK FRAZIER, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
FROM REFUGIO COUNTY



 Price, J., filed a statement concurring in the dismissal of the application, in which
Cochran, J., joins.

CONCURRING STATEMENT


	This is Applicant's second subsequent writ application.  In it he alleges that the State
knowingly elicited perjured testimony at his trial.  Within the last few days the witness has
signed an affidavit to this effect.  However, in that affidavit, the witness admits that he had
confessed his perjury prior to Applicant's first subsequent writ application, but refused at that
time to give an affidavit.  Thus, the factual basis for the claim was "ascertainable" at least
as of the filing of the first subsequent writ application, if not before.  See Article 11.071, §
5(e).  Applicant knew about and could have alleged the perjury at that time, documented his
attempts to obtain an affidavit, and invoked the compulsory processes of the court, requesting
a hearing at which to call the witness and place him under oath.  Because the current claim
could have been presented in a previously considered application, Applicant cannot now
establish that the factual basis for his claim was unavailable, for purposes of a second
subsequent writ application under Article 11.071, section 5 (a).
 
Filed: August 31, 2006.
Do Not Publish.
