Hathorn, Ex Parte Gene Wilford Jr. ( 2008 )

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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NO. AP-75,917

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EX PARTE GENE WILFORD HATHORN, JR.

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ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE

NO. 6958-D IN THE 411^TH JUDICIAL DISTRICT COURT

TRINITY COUNTY

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           Per Curiam.

O R D E R

           On June 27, 1985, a jury convicted applicant of the offense of capital murder. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure article 37.071, and the trial court, accordingly, set punishment at death. This Court affirmed applicant’s conviction and sentence on direct appeal. Hathorn v. State, 848 S.W.2d 101 (Tex. Crim. App. 1992). Applicant filed his initial post-conviction application for writ of habeas corpus in the convicting court on October 14, 1997. This Court denied applicant relief. Ex parte Hathorn, Nos. WR-65,054-01, -02, and -03 (Tex. Crim. App. Sept. 13, 2006)(not designated for publication). Applicant’s first and second subsequent applications, respectively filed in the trial court on March 17, 2006, and June 9, 2006, were dismissed in the same order denying relief on applicant’s initial application. Id. Applicant’s third subsequent application was filed in the trial court on November 13, 2007. This Court dismissed that application on April 9, 2008. Ex parte Hathorn, No. WR-65,054-04 (Tex. Crim. App. Apr. 9, 2008)(not designated for publication).

           We now take the unusual step of reconsidering, on our own initiative, the Penry claim raised in applicant’s initial application for writ of habeas corpus, but subsequently rejected by this Court in its September 13, 2006, order. The Court has further determined that the case should be filed and set. While the Court will not hear oral argument, it has determined that both parties should brief the following issues:

1.        Did applicant object at trial that his jury was not given an adequate vehicle through which it could give effect to his mitigating evidence? Was any other objection specifically pertaining to mitigating evidence made when discussing the charge to be given the jury?

2.        If no objection was made, does this make a difference regarding the resolution of applicant’s allegation?

3.        Was the mitigating evidence presented at applicant’s trial the type of evidence for which applicant was entitled to a separate vehicle?

4.        Although applicant’s direct appeal began prior to the time the United States Supreme Court handed down the decision in Penry, was direct appeal counsel obligated to raise the claim post-submission considering applicant’s direct appeal remained pending in this Court for some three years after the Penry decision was handed down?

Briefs from both applicant and the State are due in this Court within 60 days of the date of this order. No motions for extension of time to file will be entertained.

           IT IS SO ORDERED THIS THE14^TH DAY OF MAY, 2008.

Do Not Publish