Cathey, Eric Dewayne













IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NO. WR-55,161-02


IN RE K. S. "GATOR" DUNN




ON SHOWING OF GOOD CAUSE FOR UNTIMELY FILED DOCUMENTS IN APPLICANT CATHEY'S CASE FROM CAUSE NO. 713189

IN THE 176TH DISTRICT COURT

HARRIS COUNTY


Per Curiam.

O R D E R



Applicant Eric Dewayne Cathey was set for execution on Tuesday, November 18, 2008. Counsel filed a subsequent application on applicant's behalf in the trial court at 4:20 p.m., November 17, 2008. (1) Pursuant to our Miscellaneous Rule 08-101 setting out the requirements and possible consequences of filing pleadings within the forty-eight hours preceding an applicant's execution, applicant's counsel K. S. "Gator" Dunn filed with the untimely pleadings an "Explanation for an Untimely Filing."

In the explanation, Dunn states that he "was unaware, until very recently, that [his client] had a substantial claim of mental retardation under Atkins," despite the fact that he had been representing applicant since 2003. Indeed, counsel states that, after an initial review of the mental health evidence already contained within the record, he "concluded that additional investigation concerning [applicant's] background and mental condition was not warranted." Only after applicant's execution was scheduled in August 2008 did counsel decide to consult other counsel on applicant's case, and only after this consultation did counsel see fit to investigate the possibility of raising a mental retardation claim in a writ of habeas corpus.

Before we determine whether counsel's explanation is a sufficient showing of good cause for why he found it physically, legally, or factually impossible to file a timely writ application, we want to hear from counsel in person. Therefore, we order counsel to appear before this Court at 9:00 a.m. on Wednesday, January 14, 2009, to offer further explanation and address any questions propounded by the Court about the matter.

IT IS SO ORDERED THIS THE 26TH DAY OF NOVEMBER, 2008.



Do Not Publish

1. Counsel delivered courtesy copies to this Court just before 1:30 p.m. on November 17, 2008.