EX PARTE KENNETH WAYNE THOMAS (other)

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS 

NO. WR-16,556-05
EX PARTE KENNETH WAYNE THOMAS
ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE
NO. F-86-85539 IN THE 194TH JUDICIAL DISTRICT COURT 
DALLAS COUNTY 
Per Curiam. cochran, j. filed a dissenting statement in which price , johnson, and holcomb, jj., joined.O R D E R

On September 2, 1987, a jury convicted applicant of the offense of capital murder. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071, and the trial court, accordingly, set punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Thomas v. State, AP-69,938 (Tex. Crim. App. June 6, 1994). On May 13, 1997, applicant filed his initial application for a writ of habeas corpus pursuant to Article 11.071. We denied relief. Ex parte Thomas, No. 73,251 (Tex. Crim. App. Tex. Crim. App. Oct. 20, 1999).

In a single allegation in this subsequent application, applicant alleges that he is entitled to relief from his death sentence because he presented significant mitigating evidence related to his moral culpability and the appropriateness of a death sentence which could not have been given full effect by the sentencing jury. See Penry v. Johnson ("Penry I"), 492 U.S. 302 (1989). This Court has reviewed the application and determined that it satisfies the requirements of Article 11.071 5.

This Court has reviewed the record with respect to the allegation made by applicant. The mitigating evidence presented by applicant does not rise to the level of the sort of evidence that this Court has said is not encompassed within the previous statutory special issues. Relief is denied.

IT IS SO ORDERED THIS THE 31ST DAY OF MARCH, 2010.

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