







IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. WR-55,161-02


IN RE K. S. "GATOR" DUNN




ON SHOWING OF GOOD CAUSE FOR UNTIMELY FILED DOCUMENTS IN
APPLICANT CATHEY'S CASE FROM CAUSE NO. 713189
IN THE 176TH DISTRICT COURT
HARRIS COUNTY


Per Curiam. 

O R D E R


	Applicant Eric Dewayne Cathey was set for execution on Tuesday, November 18,
2008.  Counsel filed a subsequent application on applicant's behalf in the trial court at 4:20
p.m., November 17, 2008. (1)  Pursuant to our Miscellaneous Rule 08-101 setting out the
requirements and possible consequences of filing pleadings within the forty-eight hours
preceding an applicant's execution, applicant's counsel K. S. "Gator" Dunn filed with the
untimely pleadings an "Explanation for an Untimely Filing."  
	In the explanation, Dunn states that he "was unaware, until very recently, that [his
client] had a substantial claim of mental retardation under Atkins," despite the fact that he had
been representing applicant since 2003.  Indeed, counsel states that, after an initial review
of the mental health evidence already contained within the record, he "concluded that
additional investigation concerning [applicant's] background and mental condition was not
warranted."  Only after applicant's execution was scheduled in August 2008 did counsel
decide to consult other counsel on applicant's case, and only after this consultation did
counsel see fit to investigate the possibility of raising a mental retardation claim in a writ of
habeas corpus.
	Before we determine whether counsel's explanation is a sufficient showing of good
cause for why he found it physically, legally, or factually impossible to file a timely writ
application, we want to hear from counsel in person.  Therefore, we order counsel to appear
before this Court at 9:00 a.m. on Wednesday, January 14, 2009, to offer further explanation
and address any questions propounded by the Court about the matter.
	IT IS SO ORDERED THIS THE 26TH DAY OF NOVEMBER, 2008.

Do Not Publish
1.   Counsel delivered courtesy copies to this Court just before 1:30 p.m. on November 17,
2008.

