Harris, David R.

Court of Criminal Appeals of Texas

Harris, David R.

136 S.W.3d 669, 2004 WL 1553958

CourtCourt of Criminal Appeals of Texas

DecidedJune 30, 2004

DocketWR-20,983-06

StatusPublished

Cited by1 cases

This text of 136 S.W.3d 669 (Harris, David R.) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Harris, David R., 136 S.W.3d 669, 2004 WL 1553958 (Tex. 2004).

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Opinion

MEYERS, J.,

filed a dissenting statement.

I disagree with the majority’s decision to dismiss this case as an abuse of the writ. Because this claim was not available at the time of applicant’s first writ, I feel that this application meets the requirements of Texas Code of Criminal Procedure Article 11.071 section 5. In light of the Supreme Court’s recent decision in Tennard v. Dretke, 542 U.S. -, 124 S.Ct. 2562, - L.Ed.2d-(2004), there is evidence that the Court may now consider issues beyond the traditional Penry-type issues to be mitigating. The Court also rejected the nexus requirement, which was the reason applicant’s previous claim failed. However, as a matter of law, I don’t believe that the Supreme Court would have extended relief to an issue such as alcoholism at the time this case was tried. Additionally, I agree with the 5th Circuit determination that the issue of applicant’s alcoholism was sufficiently covered by the two special issues presented at his trial. As such, I would deny relief rather than dismiss this application as an abuse of the writ.

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MEYERS, J.,

filed a dissenting statement.

I disagree with the majority’s decision to dismiss this case as an abuse of the writ. Because this claim was not available at the time of applicant’s first writ, I feel that this application meets the requirements of Texas Code of Criminal Procedure Article 11.071 section 5. In light of the Supreme Court’s recent decision in Tennard v. Dretke, 542 U.S. -, 124 S.Ct. 2562, - L.Ed.2d-(2004), there is evidence that the Court may now consider issues beyond the traditional Penry-type issues to be mitigating. The Court also rejected the nexus requirement, which was the reason applicant’s previous claim failed. However, as a matter of law, I don’t believe that the Supreme Court would have extended relief to an issue such as alcoholism at the time this case was tried. Additionally, I agree with the 5th Circuit determination that the issue of applicant’s alcoholism was sufficiently covered by the two special issues presented at his trial. As such, I would deny relief rather than dismiss this application as an abuse of the writ.

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Bluebook (online)

136 S.W.3d 669, 2004 WL 1553958, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harris-david-r-texcrimapp-2004.

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