Foster, Kenneth Eugene Jr.

• Court: Court of Criminal Appeals of Texas
• Decided: August 7, 2007
• Docket: WR-50,823-02
• Status: Published

Opinion

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

186^TH 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 5^th 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 7^TH DAY OF AUGUST, 2007.

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