Ex Parte Allen

Full title: EX PARTE KERRY DIMART ALLEN Applicant

Court: Court of Criminal Appeals of Texas

Date published: Apr 28, 2010

No. WR-73,586-01 (Tex. Crim. App. Apr. 28, 2010)

Opinion

No. WR-73,586-01

Delivered: April 28, 2010. DO NOT PUBLISH.

On Application for Writ of Habeas Corpus in Cause No. 844387 in the 351st Judicial District Court Harris County.

KEASLER, J., filed a concurring statement in which KELLER, P.J., and HERVEY, J., joined.

ORDER

PER CURIAM.

This is a post-conviction application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071. In May 2001, a jury convicted Applicant of the offense of capital murder. The jury answered the special issues submitted under Article 37.071 of the Texas Code of Criminal Procedure, and the trial court, accordingly, set punishment at death. This Court affirmed Applicant's conviction and sentence on direct appeal. Allen v. State, 108 S.W.3d 281 (Tex. Crim. App. 2003). Applicant presents thirty-seven allegations in his application in which he challenges the validity of his conviction and resulting sentence. The trial court held an evidentiary hearing and adopted the State's proposed findings of fact and conclusions of law recommending that the relief sought be denied. This Court has reviewed the record with respect to the allegations made by Applicant. We adopt the trial judge's findings and conclusions. Based upon the trial court's findings and conclusions and our own review, we deny relief. IT IS SO ORDERED THIS THE 28^TH DAY OF APRIL, 2010.

CONCURRING STATEMENT

I write separately to make clear that Kerry Dimart Allen's grounds for relief thirty-one through thirty-three are procedurally defaulted because Allen could have raised them on direct appeal but did not.¹ I would therefore hold that these grounds are procedurally barred before addressing the merits of these claims as the trial judge did in his conclusions of law. I would also hold that Allen is estopped from raising ground seven, to the extent that he contends that his trial attorney rendered ineffective assistance, because, as found by the trial judge, Allen, in open court, explicitly approved of juror Sowers attending his wife's graduation ceremony after consulting with his attorney.²

1 See Ex parte Banks, 769 S.W.2d 539, 540 (Tex. Crim. App. 1989) (op. on reh'g).

2 See Druery v. State, 225 S.W.3d 491, 505 (Tex. Crim. App. 2007).