This is a post-conviction application for a writ of habeas corpus filed pursuant to Article 11.07, § 3, TEX.CODE CRIM.PROC. Applicant was convicted of murder and punishment was assessed at confinement for thirty-five years. Appeal was affirmed, Fillmore v. State, No. 13-97-659-CR (Tex. App. - Corpus Christi, delivered September 10, 1998, no pet.).

Applicant contends that his counsel was ineffective and he is actually innocent. The trial court conducted an evidentiary hearing and then entered findings of fact and conclusions of law. We have reviewed the record and find that conclusions of law pertaining to claims being procedurally barred or being subject to review under Schlup v. Delo ⁽¹⁾ are not supported by the record. However, there is evidence in this record to support the court's findings that there is no reasonable probability that a different result would have been obtained but for counsel's alleged failings, and that Applicant has not proven that he is actually innocent.

Therefore, all relief is denied.

Johnson, J., dissents.

DELIVERED: March 25, 2009

DO NOT PUBLISH

1. 513 U. S. 298 (1995)