EX PARTE KERRY DIMART ALLEN Applicant (STATEMENT FILED)
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IN THE COURT OF CRIMINAL APPEALS
NO. WR-73,586-01
EX PARTE KERRY DIMART ALLEN Applicant
CONCURRING STATEMENT
I write separately to make clear that Kerry Dimart Allen's grounds for relief thirty-one through thirty-three are procedurally defaulted because Allen could have raised them on direct appeal but did not. (1) I would therefore hold that these grounds are procedurally barred before addressing the merits of these claims as the trial judge did in his conclusions of law. I would also hold that Allen is estopped from raising ground seven, to the extent that he contends that his trial attorney rendered ineffective assistance, because, as found by the trial judge, Allen, in open court, explicitly approved of juror Sowers attending his wife's graduation ceremony after consulting with his attorney. (2)
OF TEXAS
NO. WR-73,586-01
EX PARTE KERRY DIMART ALLEN Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 844387 IN THE 351ST DISTRICT COURT
HARRIS COUNTY
Keasler, J., filed a concurring statement in which Keller, P.J., and Hervey, J., joined.CONCURRING STATEMENT
I write separately to make clear that Kerry Dimart Allen's grounds for relief thirty-one through thirty-three are procedurally defaulted because Allen could have raised them on direct appeal but did not. (1) I would therefore hold that these grounds are procedurally barred before addressing the merits of these claims as the trial judge did in his conclusions of law. I would also hold that Allen is estopped from raising ground seven, to the extent that he contends that his trial attorney rendered ineffective assistance, because, as found by the trial judge, Allen, in open court, explicitly approved of juror Sowers attending his wife's graduation ceremony after consulting with his attorney. (2)
DATE DELIVERED: April 28, 2010
DO NOT PUBLISH
1. See Ex parte Banks, 769 S.W.2d 539, 540 (Tex. Crim. App. 1989) (op. on reh'g).
2. See Druery v. State, 225 S.W.3d 491, 505 (Tex. Crim. App. 2007).
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