IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. WR-67,208-03 and WR-67,208-04

EX PARTE ROBERT MITCHELL JENNINGS, Applicant

ON APPLICATIONS FOR POST-CONVICTION WRITS OF HABEAS CORPUS
IN CAUSE NO. 506814 IN THE 208 TH DISTRICT COURT
HARRIS COUNTY

Per curiam. K ELLER, P.J., and KEASLER, HERVEY, and NEWELL, JJ., dissent.

ORDER
These are post-conviction applications for writs of habeas corpus filed pursuant to the
provisions of Texas Code of Criminal Procedure Article 11.071 § 5.
On July 13, 1989, a jury convicted applicant of the offense of capital murder.
Pursuant to the jury’s answers to the special issues set forth in Texas Code of Criminal
Procedure Article 37.071, the trial court sentenced applicant to death. Article 37.071(e).
This Court affirmed applicant’s conviction and sentence on direct appeal. Jennings v. State,

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No. AP-70,911 (Tex. Crim. App. Jan. 20, 1993)(not designated for publication). On
September 20, 1996, applicant filed his initial post-conviction application for a writ of habeas
corpus in the convicting court. On June 16, 2001, applicant filed in the convicting court a
“supplement” to that application.1 This Court received the applications in March 2007.
After reviewing the cases, this Court filed and set two of the ineffective assistance
claims from the initial writ application, and it filed and set the single claim raised in the
subsequent application. The Court ultimately issued an opinion denying applicant relief. Ex
parte Jennings, Nos. AP-75,806 and AP-75,807 (Tex. Crim. App. Nov. 26, 2008)(not
designated for publication).
Applicant filed his second subsequent application in the trial court on May 4, 2016.
In his second subsequent application, applicant asserts that: (1) the State destroyed, lost, or
suppressed relevant mitigating evidence; (2) the unconstitutional “nullification” instruction
prevented the jury from fully considering and giving effect to certain mitigating evidence;
(3) trial counsel were ineffective in failing to discover and present certain mitigating
evidence; and (4) the death penalty violates the constitutional prohibition against cruel and
unusual punishment.
On July 20, 2016, applicant filed in the trial court a pleading titled a “Supplement to
Subsequent Application for a Writ of Habeas Corpus,” in which he raises a claim that “the

1

Because the “supplement” to the application was filed after the time allowed in Article
11.071 for filing an initial application and because it raised a new claim, the “supplement” was
designated a subsequent application.

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unconstitutional ‘nullification’ instruction prevented the jury from fully considering and
giving effect to mitigating evidence of [his] remorse.” After reviewing applicant’s pleadings,
this Court has determined that applicant’s execution should be stayed pending further order
of this Court.
IT IS SO ORDERED THIS THE 2 ND DAY OF SEPTEMBER, 2016.

Do Not Publish