









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. WR-20,574-04 


EX PARTE TROY KUNKLE, Applicant





ON MOTION TO RECONSIDER THE COURT'S PRIOR DISMISSAL OF 
THE APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM NUECES COUNTY



 Price, J., filed a statement dissenting to the denial of the motion, in which
Holcomb, J., joined.


S T A T E M E N T



 	Today, just as it did in November, this Court is denying relief, not on the basis that
Troy Kunkle is not entitled to relief, but because his attorney asked for it too soon.  As a
result, I cannot join the majority in allowing Troy Kunkle's execution to take place.  I
strongly dissent.
	Kunkle asks this Court to reconsider its decision to dismiss his prior application
for a writ of habeas corpus. (1)  The state of death penalty law in Texas regarding when a
defendant is entitled to a mitigating instruction is confusing at best.  We have been
thrown by seemingly contradictory opinions from both the Fifth Circuit and the United
States Supreme Court.  And, the procedural history in this case is enough to make one
dizzy.  The United States Supreme Court has granted a stay of execution in Kunkle's case
twice in the last year.  And twice, it has lifted its stay.
	The mixed signals that we have been receiving are enough to convince some
judges to sit back and see what the Supreme Court will do with the case.  I am not so
inclined.
	Justice Stevens wrote a statement concurring in the Supreme Court's decision to
lift the second stay in this case. (2)  He set out his reasons for voting to grant the stay and
then for voting to lift the stay of Kunkle's execution.  According to Justice Stevens, there
was some doubt about whether the decision from the Court of Criminal Appeals on
November 17, 2004, from which Kunkle filed his petition for certiorari, was based on an
independent and adequate state ground. (3)  On the one hand, I appreciate Justice Stevens's
attempt to shed some light on his thinking on this case.  I wish that the rest of the
Supreme Court had done the same.  On the other hand, I am disturbed to think that a
United States Supreme Court Justice would conclude that Kunkle's sentence was imposed
in violation of the United States Constitution, but would also deny relief on what seems to
be a procedural technicality.
	Although Justice Stevens believes that this Court's decision was properly based on
Article 11.071, Section 5, I am far from convinced. 
	The language of Article 11.071 is clear:  We may not reach the merits unless we
find that the applicant has met the dictates of Section 5.  But, according to the order
issued by a majority of this Court November, 17, 2004, the majority reviewed Kunkle's
claims in light of Tennard and Smith. (4) So, the Court must have reviewed the merits of the
claim.  And thus, the Supreme Court would be able to address whether this Court's
decision comports with its decision in these cases.
	The majority also claimed that Kunkle's application was dismissed because he had
raised the claim before. (5)  The majority of this Court concluded that Kunkle was not
entitled to relief because he had raised the same claim in his prior writ.  It is, apparently,
of no moment to the Supreme Court that under Tennard v. Dretke, (6) and Smith v. Texas, (7)
this Court was clearly wrong in affirming Kunkle's death sentence.  I think that Justice
Stevens alludes to this when he says that it seems plain that Kunkle's sentence was
imposed in violation of the Constitution.
	This creates the absurd situation in which Kunkle is denied relief because his
attorney was too conscientious, because he predicted that the United States Supreme
Court would strike down the nexus requirement and not apply Penry I (8) as narrowly as the
Fifth Circuit had.
	Because Kunkle's attorney requested relief too soon, Kunkle will be executed,
even though his sentence was obtained in violation of the United States Constitution. 
This policy seems contrary to the policy behind the general prohibition of subsequent
writs:  encourage defendants to bring their claims as soon as they are discovered or risk
procedural default.
	I cannot, in good conscience, join the Court in denying the relief to which Kunkle
is entitled.  I dissent.
Filed:  January 24, 2005.
Publish.
1. See Ex parte Kunkle, No. WR-20,574-04 (Tex. Crim. App. Nov. 17, 2004) (not
designated for publication) (Per Curiam) (Price, Womack, Johnson, and Holcomb, JJ., would
grant stay of execution).
2. Kunkle v. Texas, No. 04-7271 (Dec. 13, 2004).
3. Id., slip op. at 1.
4. See Ex parte Kunkle, No. WR-20,574-04, slip op. at 2 (Tex. Crim. App. Nov. 17, 2004)
(not designated for publication) (Per Curiam) (Price, Womack, Johnson, and Holcomb, JJ.,
would grant stay of execution).
5. Ibid.  See also, Ex parte Kunkle, 852 S.W.2d 499 (Tex. Crim. App. 1986), cert. denied,
492 U.S. 925 (1989).
6. Tennard v. Dretke, 124 S. Ct. 2562 (2004).
7. Smith v. Texas, 125 S. Ct. 400 (2004).
8. Penry v. Lynaugh, 492 U.S. 302, 328 (1989). 
