EX PARTE CARY KERR (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-62,402-03

EX PARTE CARY KERR

ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS AND MOTION FOR STAY OF EXECUTION

IN CAUSE NO. C-297-007102-0874357-C

IN THE 297TH JUDICIAL DISTRICT COURT

TARRANT COUNTY

Per Curiam. Price, J., filed a dissenting statement in which Johnson, J., joined.

O R D E R

This is a subsequent application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071, § 5.

In March 2003, 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 applicant's punishment at death. This Court

affirmed applicant's conviction and sentence on direct appeal. Kerr v. State, No. AP-74,637 (Tex. Crim. App. Jan. 12, 2005)(not designated for publication).

In October 2004, applicant filed in the trial court his initial post-conviction application for writ of habeas corpus. This Court denied applicant relief. Ex parte Kerr, No. WR-62,402-01 (Tex. Crim. App. Aug. 31, 2005)(not designated for publication). Applicant filed his first subsequent application in the trial court in August 2006. This Court dismissed that application because it failed to meet the dictates of Article 11.071, § 5. Ex parte Kerr, No. WR-62,402-02 (Tex. Crim. App. Dec. 20, 2006)(not designated for publication). This, his second subsequent application, was filed in the trial court on April 27, 2011.

Applicant presents a single allegation in his application in which he asserts that his initial state habeas counsel rendered ineffective assistance of counsel which ineffectiveness denied applicant a proper review of his ineffective assistance of trial counsel claims. We have reviewed the application and find that applicant has failed to meet the requirements of Article 11.071, § 5. Accordingly, we dismiss his application and deny his motion for stay of execution.

IT IS SO ORDERED THIS THE 28th DAY OF APRIL, 2011.

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