IN THE COURT OF CRIMINAL APPEALS
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 STATEMENTI 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 PUBLISH1.
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).