We have an inmate serving 50 years for agg sex of a child who, rumor has it, has attorneys preparing to file an actual innocence writ based on recanted victim testimony. The wrinkle in this is that he previously filed a writ based on this same claim back in 1998 or 1999 - before the Court of Criminal Appeals lost their minds and said "sure, we'd be happy to hear these thing." Of course his writ was postcarded.

Does he he get by dismissal under art. 11.07 Sec. 4 under the "unavailable" legal basis loophole of Sec. 4(b)?

A couple of thoughts:
1) Maybe I'm missing something, but how does this would fall under the unavailable legal basis exception? Wouldn't the claim re the recanted testimony have had the same potential effect five years ago as now?

2) I couldn't easily turn this up, but I remember seeing a CCA case (not sure how recent) where they discuss what does and doesn't constitute a subsequent writ, and it seems like the gist of it was that an actual denial of a previous writ was much more likely than a dismissal to result in the next writ being considered "subsequent", because it indicated an actual review of the merits of the previous writ (i.e. he'd already had his "one bite of the apple").

Maybe all that's relevant to your case and maybe not, but good luck in any event.

Elizabeth