Vasquez, Richard ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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WR 59,201-01 and -02

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EX PARTE RICHARD VASQUEZ

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ON APPLICATION FOR WRIT OF HABEAS CORPUS CAUSE NO. 98-CR-0730-E(1) IN THE 148^TH JUDICIAL DISTRICT COURT NUECES COUNTY

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Per Curiam.

O R D E R

This is a post conviction application for writ of habeas corpus filed pursuant to the provisions of Article 11.071, Tex. Code Crim. Proc.

On June 22, 1999, applicant was convicted of the offense of capital murder. The jury answered the special issues submitted pursuant to Article 37.071, Tex. Code Crim. Proc., and the trial court, accordingly, set punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Vasquez v. State, No. 73,461 (Tex. Crim. App. Oct. 3, 2001)(not designated for publication).

Applicant presents thirteen allegations in his application in which he challenges the validity of his conviction and resulting sentence. ⁽¹⁾ An evidentiary hearing was held, and the trial judge entered findings of fact and conclusions of law. The trial court recommended that relief be denied.

This Court has reviewed the record with respect to the allegations made by applicant. We adopt the trial judge's findings and conclusions. Based upon the trial court's findings and conclusions and our own review, the relief sought is denied.

This Court has also reviewed a document entitled "Amended and Suppl[e]mental Application for Writ of Habeas Corpus Seeking Relief from Conviction and Death Penalty and Request for an Evidentiary Hearing." Because applicant filed this document after the deadline provided for an initial application for habeas corpus and because he presents a new allegation in it, we find it to be a subsequent application. ⁽²⁾ See Art. 11.071. We further find that the document fails to meet one of the exceptions provided

for in Section 5 of Article 11.071 and, thus, have no authority to do anything other than dismiss this subsequent application as an abuse of the writ.   

IT IS SO ORDERED THIS THE 26^TH DAY OF JANUARY, 2004.

  Do Not Publish

1. Applicant fails to include in his application a prayer and an oath swearing to the truth of the facts alleged in his application. Although this omission is not jurisdictional, it does deprive applicant of the opportunity to prove his allegations.

Ex parte Golden, 991 S.W.2d 859, 862 n.2 (Tex. Crim. App. 1999). In this case, due to the efforts of the trial court and the State, there is adequate proof in the record to enable this Court to address applicant's claims.

2. Applicant likewise fails to include in this subsequent application a prayer and an oath swearing to the truth of the facts he alleges.