Thomas, Kenneth Wayne ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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WR-16,556-04

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EX PARTE KENNETH WAYNE THOMAS

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ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE NO. F86-85539-TM FROM THE 194^TH DISTRICT COURT OF DALLAS COUNTY

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Per Curiam.  

ORDER

This is a subsequent application for writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure, Article 11.071, Section 5. Applicant asserts he is mentally retarded and cannot be executed.

Applicant was convicted of capital murder on September 2, 1987. We affirmed the conviction and sentence. Thomas v. State, No. AP-69,938 (Tex. Crim. App. June 8, 1994). In applicant's initial application for writ of habeas corpus he raised inter alia a claim that the jury was not given a means to give mitigating effect to his mental retardation. We denied relief. Ex parte Thomas, No. AP-73,251 (Tex. Crim. App. October 20, 1999). On May 1,

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2003, applicant filed this subsequent application for writ of habeas corpus alleging he was mentally retarded and could not be executed under Atkins v. Virginia, 536 U.S. 304 (2002). We ruled that applicant had met the requirements for consideration of subsequent claims and remanded to the convicting court to hear evidence and make findings on the issue of whether applicant is mentally retarded.

The convicting court has made findings of fact and we have reviewed the records in this case. The findings of fact of the convicting court are supported by the record and we adopt them as our own. Because we hold that applicant has failed to show that he is mentally retarded or that he should not be executed, applicant's request for relief is denied. The stay of execution previously entered in this case is vacated.

IT IS SO ORDERED THIS THE 13^TH DAY OF DECEMBER, 2006.

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