I disagree with the majority's decision to dismiss this case as an abuse of the writ. Because this claim was not available at the time of applicant's first writ, I feel that this application meets the requirements of Texas Code of Criminal Procedure Article 11.071 section 5. In light of the Supreme Court's recent decision in Tennard v. Dretke, 542 U.S. ____ (2004), there is evidence that the Court may now consider issues beyond the traditional Penry-type issues to be mitigating. The Court also rejected the nexus requirement, which was the reason applicant's previous claim failed. However, as a matter of law, I don't believe that the Supreme Court would have extended relief to an issue such as alcoholism at the time this case was tried. Additionally, I agree with the 5th Circuit determination that the issue of applicant's alcoholism was sufficiently covered by the two special issues presented at his trial. As such, I would deny relief rather than dismiss this application as an abuse of the writ.
Meyers, J.
Filed: June 30, 2004
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