









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DO NOT PUBLISH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). 
