Mathis, Milton Wuzael

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-50,772-04 EX PARTE MILTON W. MATHIS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 31,361-D

IN THE 268TH DISTRICT COURT

FROM FORTH BEND COUNTY

Keasler, J., filed a concurring statement in which Hervey, J., joined.

CONCURRING STATEMENT

I agree with the Court's determination to dismiss this application under Article 11.071, Texas Code of Criminal Procedure Section 5. Relying on the now-discredited Dr. Denkowski and the Fifth Circuit's determination in Matamoros v. Thaler ⁽¹⁾--the applicant contends that his third subsequent application, alleging that he is mentally retarded under Atkins v. Virginia, ⁽²⁾ meets the requirements of Section 5. The problem with the applicant's argument is that Dr. Denkowski did not testify at the applicant's trial and has had nothing to do with this case. The fact that counsel has used this ruse to justify violating our forty-eight hour timeliness rule is outrageous. The applicant's reliance on the recent Dr. Denkowski developments is misplaced. Because it has absolutely no application to this case, the applicant's claim is not cognizable. ⁽³⁾

DATE FILED: June 21, 2011

DO NOT PUBLISH

1. No. 10-70016 (Order June 16, 2011)

.

2. 536 U.S. 304 (2002).

3. See Ex parte Brooks, 219 S.W.3d 396, 400 (Tex. Crim. App. 2007);

Ex parte Santana, 227 S.W.3d 700, 705-706 (Tex. Crim. App. 2007).