Pruett, Robert Lynn , 458 S.W.3d 535 ( 2015 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-62,099-04
EX PARTE ROBERT LYNN PRUETT, Applicant
ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS
AND MOTION TO STAY THE EXECUTION IN CAUSE NO. B-D1-MO15-PR-B
IN THE 156 TH JUDICIAL DISTRICT COURT
BEE COUNTY
Per curiam. R ICHARDSON, J., not participating.
OPINION
This is a subsequent application for a writ of habeas corpus filed pursuant to the
provisions of Texas Code of Criminal Procedure Article 11.071 § 5 and a motion to stay
applicant’s execution.
In April 2002, a jury found applicant guilty 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 applicant’s punishment at death. This
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Court affirmed applicant’s conviction and sentence on direct appeal. Pruett v. State, No.
AP-74,370 (Tex. Crim. App. Sept. 22, 2004)(not designated for publication). Applicant
filed his initial application for a writ of habeas corpus in the convicting court in February
2004, and this Court subsequently denied relief. Ex parte Pruett, 207 S.W.3d 767 (Tex.
Crim. App. 2005). Applicant filed a subsequent application for a writ of habeas corpus in
the trial court on July 14, 2014. This Court determined that the subsequent application
failed to satisfy the requirements of Article 11.071 § 5(a), and the Court dismissed it. Ex
parte Pruett, No. WR-62,099-02 (Tex. Crim. App. Dec. 10, 2014)(not designated for
publication). On April 1 and 8, 2015, applicant filed in this Court a motion for leave to
file a petition for a writ of prohibition and a petition for a writ of prohibition. The Court
denied applicant leave to file the writ of prohibition on April 20, 2015.
On April 17, 2015, applicant filed in the trial court his second subsequent
application for a writ of habeas corpus. In that application, applicant asserted that he was
entitled to relief under Texas Code of Criminal Procedure Article 11.073 because, had the
results of DNA testing conducted pursuant to a Chapter 64 motion been available at the
time of trial, it was likely that the jury would not have convicted him. Applicant cannot
obtain relief on this claim.
In May 2013, applicant filed in the trial court a motion for post-conviction DNA
and palm-print testing under Chapter 64 of the Texas Code of Criminal Procedure. The
trial court granted that testing. However, the results of the testing were inconclusive, and
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the trial judge found that it was not reasonably probable that applicant would have been
acquitted had the new results been available at trial. Applicant appealed that decision to
this Court, and, after reviewing the issue de novo, we affirmed the judgment of the trial
court. Pruett v. State, No. AP-77,037 (Tex. Crim. App. Oct. 22, 2014)(not designated for
publication), cert. denied, Pruett v. Texas, No. 14-8097 (Mar. 30, 2015).
Article 11.073, by its language, applies to relevant scientific evidence that was not
available to be offered by a convicted person at the convicted person’s trial. Article
11.073 provides that a court may grant relief on an application for a writ of habeas corpus
if a person (1) files an application containing specific facts indicating that (A) relevant
scientific evidence is currently available that was not available at the time of trial because
it was not ascertainable, and (B) the scientific evidence would be admissible at trial, and
(2) the court makes the above findings and also finds that, had the evidence been
presented at trial, “on the preponderance of the evidence the person would not have been
convicted.” Because both the trial court and this Court during the 2013 Chapter 64
proceedings found that the inconclusive DNA evidence did not support a reasonable
probability that applicant would have been acquitted had that evidence been available at
his trial, applicant is foreclosed from obtaining relief under Article 11.073. Therefore,
applicant is denied relief in this subsequent writ application, and his motion to stay his
execution is denied. No motions for rehearing will be entertained, and the clerk of this
Court is instructed to issue mandate immediately.
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Publish
Delivered: April 24, 2015