Per Curiam. Price, J., would remand to the trial court for further consideration. Holcomb, J., not participating.
This is a subsequent application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure, Article 11.071, § 5 and a petition for habeas corpus and writ of certiorari filed pursuant to the provisions of Texas Constitution, Article 5, § 5.
Applicant/petitioner was convicted of capital murder on October 8, 1993. The conviction was affirmed on direct appeal. Vickers v. State, No. 71,801 (Tex.Crim.App. December 18, 1996). Applicant's first application for habeas relief was filed in this Court on May 6, 1998; relief was denied on October 7, 1998. Applicant's subsequent application for habeas relief was dismissed as an abuse of the writ on June 9, 1999.
Applicant has filed a second subsequent application under the provisions of Article 11.071, § 5 asserting seven claims. After reviewing the application, we find that his claims one through five were not available at the time of the original application. See Article 11.071, § 5(a)(1). However, applicant has not stated facts that show that he might be entitled to relief. His claims six and seven were not unavailable at the time of his first application and do not meet the requirements of Article 11.071, § 5. Applicant's claims are DISMISSED as an abuse of the writ.
Petitioner has also filed a motion for leave to file an original petition for habeas corpus and certiorari to invoke the original jurisdiction of this Court under Texas Constitution, Article 5, § 5. The petition asserts the same argument he raised in his subsequent application for habeas relief claims six and seven. The motion for leave to file an original petition for habeas corpus and certiorari is DENIED.
Applicant's request for a stay of execution is DENIED.
IT IS SO ORDERED THIS THE 27TH DAY OF JANUARY, 2004.
DO NOT PUBLISH