Kunkle, Troy

Court of Criminal Appeals of Texas

Kunkle, Troy

DecidedJanuary 24, 2005

DocketWR-20,574-04

StatusPublished

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

WR - 20,574-04

EX PARTE TROY KUNKLE

MOTION FOR RECONSIDERATION ON COURT'S OWN MOTION

FROM NUECES COUNTY

Per Curiam. Price, J., filed a dissenting statement. Holcomb, J., joins. Johnson, J., dissenting.

O R D E R

Applicant has asked this Court to reconsider, on our own motion, our decision on his subsequent application for a writ of habeas corpus under Texas Code of Criminal Procedure, Article 11.071, § 5.

Applicant was convicted of capital murder on February 26, 1985. We affirmed the judgment and sentence. Kunkle v. State, 771 S.W.2d 435 (Tex.Crim.App. 1986) cert. denied, 492 U.S. 925 (1989). Applicant's original application for writ of habeas corpus was considered by this Court and relief denied on February 3, 1993. Ex parte Kunkle, 852 S.W.2d 499 (Tex.Crim.App. 1993). Applicant's next application was denied with written order on March 29, 1995. A third application was dismissed without prejudice since a action was pending in federal court on September 15, 2004. KUNKLE -2-

Applicant filed a fourth application under the provisions of Texas Code of Criminal Procedure, Article 11.071, § 5 which was dismissed with written order on November 17, 2004.

Applicant reasserted claims which were previously rejected by this Court, arguing Tennard v. Dretke, 124 S.Ct. 2562 (2004), overruled this Court's analysis in his case and, thus, is a new legal theory unavailable to him at the time of his initial application for habeas relief. We reviewed applicant's claims in light of Tennard v. Dretke and Smith v. Texas, 543 U.S. , No. 04-5323 (November 15, 2004), and found that they did not meet the requirement for consideration under Texas Code of Criminal Procedure, Article 11.071, § 5. We decline to reconsider our position on applicant's subsequent application for habeas corpus.

IT IS SO ORDERED THIS THE 24^th DAY OF JANUARY, 2005.

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

WR - 20,574-04

EX PARTE TROY KUNKLE

MOTION FOR RECONSIDERATION ON COURT'S OWN MOTION

FROM NUECES COUNTY

Per Curiam. Price, J., filed a dissenting statement. Holcomb, J., joins. Johnson, J., dissenting.

O R D E R

Applicant has asked this Court to reconsider, on our own motion, our decision on his subsequent application for a writ of habeas corpus under Texas Code of Criminal Procedure, Article 11.071, § 5.

Applicant was convicted of capital murder on February 26, 1985. We affirmed the judgment and sentence. Kunkle v. State, 771 S.W.2d 435 (Tex.Crim.App. 1986) cert. denied, 492 U.S. 925 (1989). Applicant's original application for writ of habeas corpus was considered by this Court and relief denied on February 3, 1993. Ex parte Kunkle, 852 S.W.2d 499 (Tex.Crim.App. 1993). Applicant's next application was denied with written order on March 29, 1995. A third application was dismissed without prejudice since a action was pending in federal court on September 15, 2004. KUNKLE -2-

Applicant filed a fourth application under the provisions of Texas Code of Criminal Procedure, Article 11.071, § 5 which was dismissed with written order on November 17, 2004.

Applicant reasserted claims which were previously rejected by this Court, arguing Tennard v. Dretke, 124 S.Ct. 2562 (2004), overruled this Court's analysis in his case and, thus, is a new legal theory unavailable to him at the time of his initial application for habeas relief. We reviewed applicant's claims in light of Tennard v. Dretke and Smith v. Texas, 543 U.S. , No. 04-5323 (November 15, 2004), and found that they did not meet the requirement for consideration under Texas Code of Criminal Procedure, Article 11.071, § 5. We decline to reconsider our position on applicant's subsequent application for habeas corpus.

IT IS SO ORDERED THIS THE 24^th DAY OF JANUARY, 2005.

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