Ex Parte Gardner

The majority admits that the procedural history recited in its opinion on original submission was incorrectly stated, and that this Court erroneously denied relief on applicant’s claim in his first habeas corpus application because it was under the mistaken belief that this claim had been raised and decided on direct appeal. Yet it continues to hold that applicant procedurally defaulted his Fifth Amendment Estelle v. Smith claim because he did not raise it on direct appeal. Ex parte Gardner, 959 S.W.2d 189, 199 (Tex.Cr.App.1998).

As on original submission, the majority continues to chastise…