Johnson, Lonnie Earl

Court of Criminal Appeals of Texas

Johnson, Lonnie Earl

DecidedJuly 20, 2007

DocketWR-56,197-02

StatusPublished

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Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

WR-56,197-02 EX PARTE LONNIE EARL JOHNSON ON APPLICATION FOR WRIT OF HABEAS CORPUS

IN CAUSE NO. 573760 FROM THE

183^RD DISTRICT COURT OF HARRIS COUNTY

Per Curiam. Johnson, 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 asserts the State withheld material exculpatory evidence from him before trial and during appeal and post-conviction review.

Applicant was convicted of capital murder on November 17, 1994, for a double homicide and robbery committed on August 15, 1990. We affirmed the conviction and sentence. Johnson v. State, No. 72,046 (Tex. Crim. App. December 16, 1998) (opinion on rehearing). This Court denied relief on applicant's initial application for writ of habeas corpus pursuant to Article 11.071. Ex parte Johnson, WR-56,197-01 (Tex. Crim. App. October 8, 2003).

We have reviewed the application. We note that a similar claim was raised in the initial application for writ of habeas corpus, that material exculpatory evidence within the prosecutor's files was withheld by the State. We adopted the convicting court's finding on that issue "that the State's file was always open to the applicant's trial counsel, and that trial counsel went to the State's office to inspect the file." That finding is applicable here because applicant has not made a prima facie showing that the State withheld any evidence from its files. Thus, he has not shown that the "newly discovered" evidence is either newly available or withheld by the State. We find that applicant's claims 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. Applicant's motion for stay of execution is denied.

IT IS SO ORDERED THIS THE 20^TH DAY OF JULY, 2007.

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

WR-56,197-02 EX PARTE LONNIE EARL JOHNSON ON APPLICATION FOR WRIT OF HABEAS CORPUS

IN CAUSE NO. 573760 FROM THE

183^RD DISTRICT COURT OF HARRIS COUNTY

Per Curiam. Johnson, 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 asserts the State withheld material exculpatory evidence from him before trial and during appeal and post-conviction review.

Applicant was convicted of capital murder on November 17, 1994, for a double homicide and robbery committed on August 15, 1990. We affirmed the conviction and sentence. Johnson v. State, No. 72,046 (Tex. Crim. App. December 16, 1998) (opinion on rehearing). This Court denied relief on applicant's initial application for writ of habeas corpus pursuant to Article 11.071. Ex parte Johnson, WR-56,197-01 (Tex. Crim. App. October 8, 2003).

We have reviewed the application. We note that a similar claim was raised in the initial application for writ of habeas corpus, that material exculpatory evidence within the prosecutor's files was withheld by the State. We adopted the convicting court's finding on that issue "that the State's file was always open to the applicant's trial counsel, and that trial counsel went to the State's office to inspect the file." That finding is applicable here because applicant has not made a prima facie showing that the State withheld any evidence from its files. Thus, he has not shown that the "newly discovered" evidence is either newly available or withheld by the State. We find that applicant's claims 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. Applicant's motion for stay of execution is denied.

IT IS SO ORDERED THIS THE 20^TH DAY OF JULY, 2007.

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