Moreno, Ex Parte Jose Angel

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-75,748

EX PARTE JOSE ANGEL MORENO, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS IN CAUSE NO. 1986-CR1042 FROM THE

K ELLER, P.J., filed a concurring opinion.

Part of the reason for enacting the subsequent writ provisions of articles 11.07 and 11.071

was to ensure that a convicted person files only one writ application, in which all claims are raised.1

Decisions about whether to reconsider applications should be exercised in conformity with that

policy. Otherwise, we open the floodgates to unlimited “suggestions to reconsider on the Court’s

own initiative” that are actually subsequent applications. Reconsidering an application for writ of

habeas corpus after a significant passage of time should be a rare event, and should not become a

1 Ex parte Torres, 943 S.W.2d 469, 473-74 (Tex. Crim. App. 1997)(adopts doctrine in federal practice of limiting inmate to one application except in exceptional circumstances; limits applicants to “one bite of the apple”). MORENO CONCURRENCE - 2

means of circumventing the statutes. At a minimum, two conditions should be present. First, the

reconsideration must indeed involve a claim that was originally raised in the application. Second,

an indisputable mistake of fact or law that the reconsideration seeks to rectify must have been made

by this Court. If this Court, for example, through no fault of the applicant, overlooks a critical fact

or legal claim that is in the habeas application and upon which relief should have been granted,

reconsideration is an appropriate vehicle by which to correct that mistake. Or if, as here, the United

States Supreme Court has held in a comparable case that our original decision with respect to the

application “was contrary to, or involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States,”2 then we may reconsider the

application in order to correct what the Supreme Court has deemed an obvious and unreasonable

error.

With these comments, I join the Court’s opinion.

Filed: February 6, 2007 Publish

2 Abdul-Kabir v. Quarterman, 127 S. Ct. 1654, 1664 (2007)(quoting 28 U.S.C. §2254(d)(1)).