Swearingen, Larry Ray

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-53,613-04 EX PARTE LARRY RAY SWEARINGEN

ON APPLICATION FOR WRIT OF HABEAS CORPUS

IN CAUSE NO. 99-11-06435-CR

FROM THE 9^TH DISTRICT COURT OF MONTGOMERY COUNTY

Per curiam. Keller, P.J., would dismiss.

ORDER

Applicant was convicted of capital murder on June 28, 2000. We affirmed the conviction and sentence on direct appeal. Swearingen v. State, 101 S.W.3d 89 (Tex. Crim. App. 2003). On March 11, 2002, applicant filed his initial application for writ of habeas corpus pursuant to Article 11.071. We denied relief. Ex parte Swearingen, No. WR-53,613-01 (Tex. Crim. App. May 21, 2003).

Applicant now asserts that the State failed to divulge and make available certain entomological evidence collected at the crime scene that contained material evidence that was exculpatory. He also asserts that his trial counsel was ineffective for failing to investigate the existence and significance of this information. He concludes that this evidence shows that he is

SWEARINGEN -2-

actually innocent of the crime of which he is convicted. We have reviewed the application and find that claims one through six meet the requirements of Article 11.071, § 5, for consideration of subsequent claims.

Issues one through six are remanded to the trial court to resolve as set out in Article 11.071, §§ 7-10. We grant a stay of execution, which shall terminate when this Court issues its ruling on the merits of this case.

It is so ordered this 23^rd day of January, 2007.

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