Lively, Tommy Gene

• Court: Court of Criminal Appeals of Texas
• Decided: June 20, 2007
• Docket: WR-67,438-03
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. WR-67,438-01, WR-67,438-02, AND WR-67,438-03

EX PARTE TOMMY GENE LIVELY, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS

CAUSE NOS. 46294-A, 46295-A, AND 46265-A IN THE 59^TH DISTRICT COURT

FROM GRAYSON COUNTY

Per curiam.

O R D E R

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court these applications for writs of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of one count of aggravated sexual assault and two counts of sexual assault and sentenced to life imprisonment. The Fifth Court of Appeals affirmed his convictions. See Lively v. State, Nos. 05-04-01022-CR through 05-04-01024, (Tex. App. - Dallas 2005, no pet.)

In his sole claim for relief, applicant alleges that his attorney was ineffective for failing to timely inform him that his appeal of the denial of the motion for DNA testing had been affirmed so that he could file a petition for discretionary review. The trial court recommended granting Applicant an out-of-time petition for discretionary review on the basis of ineffective assistance of counsel. However, this Court has held that the post-conviction writ of habeas corpus is not available for claims of ineffective assistance of counsel in Chapter 64 proceedings. See Ex parte Baker, 185 S.W.3d 894 (Tex. Crim. App. 2006). Thus, the convicting court cannot grant Applicant relief through a writ of habeas corpus. In Ex parte Baker, we observed "that Chapter 64 does not prohibit a second, or successive, motion for forensic DNA testing, and that a convicting court may order testing of material that was not previously tested 'through no fault of the convicted person, for reasons that are of a nature that the interest of justice require DNA testing.'" Id. at 897-8. Accordingly, these applications are dismissed.

Filed: June 20, 2007

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