Nealy, Charles Anthony

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

WR-50,361-03 EX PARTE CHARLES ANTHONY NEALY ON APPLICATION FOR WRIT OF HABEAS CORPUS

IN CAUSE NO. F97-52818-H FROM THE

CRIMINAL DISTRICT COURT NO. 1 OF DALLAS COUNTY

Per Curiam.

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 that he is factually innocent and that the prosecutor suborned perjured testimony.

Applicant was convicted of capital murder on September 2, 1998. After review this Court affirmed the conviction and sentence of death. Nealy v. State, No. 73,267 (Tex.Crim.App. September 13, 2000). On July 7, 2000, applicant filed his initial application for writ of habeas corpus pursuant to Article 11.071. We denied relief. Ex parte Nealy, No. WR-50,361-01 (Tex.Crim.App. October 24, 2001).

We find that applicant's first issue does not meet the requirements for consideration under Texas Code of Criminal Procedure, Article 11.071, Section 5, and it is dismissed as an abuse of the writ. Applicant's second claim, concerning prosecutorial misconduct, does meet the requirements for consideration under Texas Code of Criminal Procedure, Article 11.071, Section 5. The case is remanded to the trial court to conduct a hearing, to receive proposed findings from the parties, and to issue findings of fact and conclusions of law before December 31, 2006. We grant a stay of the execution scheduled for Thursday, November 16, 2006, until this matter is resolved by order of this Court.

IT IS SO ORDERED THIS THE 13^th DAY OF NOVEMBER, 2006.

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