Ex Parte Earvin

816 S.W.2d 379, 1991 Tex. Crim. App. LEXIS 113, 1991 WL 87598

Opinions

OPINION

PER CURIAM.

This is a post conviction habeas corpus proceeding before this Court pursuant to Article 11.07, TEX.CRIM.PROC.CODE.

Applicant was convicted of the offense of capital murder. The jury returned affirmative answers to the special issues, TEX. CRIM.PROC.CODE., art. 37.071, and punishment was assessed at death. On direct appeal, this Court affirmed applicant’s conviction. Earvin v. State, 582 S.W.2d 794 (Tex.Cr.App.1979).

By way of a supplemental application, applicant presented an allegation claiming error under Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). We ordered the writ application filed and set on July 21, 1989, to review applicant’s allegation that the jury was unable to give effect to the mitigating evidence presented at the punishment phase of his trial.

After considering this issue and reviewing the trial record, it now appears that the decision to file and set the writ application was improvident. Therefore, the applicant’s writ of habeas corpus is dismissed pursuant to TEX.R.APP.P. 213(b).