







IN THE COURT OF CRIMINAL APPEALS

OF TEXAS


 


WR - 20,574-04


 EX PARTE TROY KUNKLE





HABEAS CORPUS APPLICATION
           FROM NUECES COUNTY            



Per Curiam. Price, Womack, Johnson, and Holcomb JJ., would grant stay.


 O R D E R

	This is a 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.  Applicant has filed a fourth application under the provisions of
Texas Code of Criminal Procedure, Article 11.071, § 5.
 KUNKLE   -2-
	Applicant reasserts his 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
have reviewed applicant's claims in light of Tennard v. Dretke and Smith v. Texas, 543 U.S.  ,
No. 04-5323 (November 15, 2004) and find that they do not meet the requirement for
consideration under Texas Code of Criminal Procedure, Article 11.071, § 5.  Applicant's
subsequent application for habeas corpus is dismissed and his motion for stay of execution is
denied.
	IT IS SO ORDERED THIS THE 17th  DAY OF NOVEMBER, 2004.
Do not publish













 
 






