IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-76,034

EX PARTE BOBBY WAYNE WOODS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS FROM THE 355 TH JUDICIAL DISTRICT COURT HOOD COUNTY

K ELLER, P.J., filed a concurring opinion.

I still believe that the Court erred in Blue1 when it held that freestanding Atkins2 claims are cognizable in a subsequent application under Article3 11.071, §5(a)(3).4 Blue’s holding in that regard was contrary to the plain language of the statute and to Supreme Court caselaw upon which the statute was patterned.5 To the extent that today’s opinion follows logically from Blue, that is just

Ex parte Blue, 230 S.W.3d 151 (Tex. Crim. App. 2007).

Atkins v. Virginia, 536 U.S. 304 (2002).

All references to articles are to the Texas Code of Criminal Procedure.

See Blue, 230 S.W.3d at 168-70 (Keller, P.J., concurring). Id. WOODS CONCURRENCE – 2 more evidence that Blue was wrong in the first place.

Blue took the first step in opening the floodgates to last-minute, unmeritorious mental- retardation claims by holding that an applicant who could have, but did not, raise an Atkins claim in a prior habeas application could raise one in a subsequent application.6 Today, the Court takes the next step by applying that holding to an applicant who has raised the Atkins claim in a prior application and who now wishes to relitigate the question. Now, all an applicant has to do to force this Court to engage in a time-consuming, last-minute review of the entire record is to find another family member or another expert witness who is willing to suggest that the applicant may have some sort of mental deficiency. The Court’s lengthy opinion in this case is an excellent example of the time and effort that will be consumed in dispensing with the subsequent, unmeritorious applications that are likely to reach the Court in the future.

I concur in the Court’s judgment but do not join its opinion.

Date filed: October 7, 2009 Publish

See Blue, 230 S.W.3d at 153, 161-62.