IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. WR-51,110-02 and WR-51,110-03

EX PARTE LARRY HATTEN

ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS

IN CAUSE NO. 95-CR-3244-H IN THE 347 JUDICIAL DISTRICT COURT

TH

NUECES COUNTY

Per curiam. KELLER, P.J., dissents.

O R D E R

In February 1996, 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. An

initial writ application was filed in the trial court on December 31, 1997. On direct appeal,

this Court affirmed applicant’s conviction but reversed the death sentence. Hatten v. State,

No. AP-72,302 (Tex. Crim. App. Apr. 29, 1998)(not designated for publication). The trial

court never acted on the writ application, and it was never properly forwarded to this Court.
Hatten - 2

In December 1998, a new jury again answered the punishment questions in such a way

that the trial court sentenced applicant to death. This sentence was affirmed on direct appeal,

and applicant was denied relief on the new habeas application filed pursuant to this new

sentence. Hatten v. State, No. AP-72,302 (Tex. Crim. App. June 20, 2001)(not designated

for publication) and Ex parte Hatten, No. WR-51,110-01 (Tex. Crim. App. Jan. 9, 2002)(not

designated for publication).

On August 18, 2003, this Court received a document entitled the “State’s Motion to

Dismiss Original Application as Moot.” In the motion, the State argued that the reversal of

the death sentence on appeal rendered the entire 1997 application moot. The State reasoned

that, absent a present death sentence, the Court had no jurisdiction to entertain an Article

11.071 writ. It was also the State’s position that, if applicant wanted to carry the

guilt/innocence claimsinto the second initial application, then he could and should have done

so, and the failure to carry them over was his decision. This Court granted the State’s motion

without order on the same day it was received, the writ application was dismissed, and

general counsel sent a letter memorializing the Court’s ruling. On October 13, 2003, this

Court received a “State’s Motion to Enter Written Order.” The Court denied the motion

without order on October 20, 2003.

Having reconsidered our ruling on the motion to dismiss and the subsequent dismissal

of the 1997 writ application, this Court on its own motion now reinstates that writ application

and remands it to the trial court to comply with the dictates of Article 11.071 at least as it
Hatten - 3

pertains to allegations affecting the guilt portion of applicant’s trial. Applicant’s execution

is stayed pending the resolution of the claims in applicant’s initial writ application. The trial

court shall resolve the claims raised in the application and return the case to this Court within

180 days from the date of this order.

We also note that a document entitled a “First Supplement” to the writ application was

filed in the trial court on February 10, 1998. Because this document was filed after an initial

writ application was filed and after the statutory due date for that application had passed, the

trial court should have declared this document to be a subsequent writ application and

forwarded it to this Court for review under Article 11.071 § 5. After reviewing this

document, we find that it does not meet the dictates of Article 11.071 § 5, and we dismiss it

as an abuse of the writ without reviewing the merits of the claim raised.

IT IS SO ORDERED THIS THE 13 DAY OF OCTOBER, 2014.

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Do Not Publish