Ex Parte Banks

28.10(c), V.A.C.C.P., Shouldn’t, however, Art. expressly pro majority opinion vides: “An indictment or judgment information at least reform the trial court’s not be amended over objection appellant guilty, defendant’s to show that was found as to committing form substance if the amended not of the offense of serious charges child, indictment or bodily injury information the de to a but because of the fendant special with an additional or different of answer to the issue the offense of if fense or the substantial of the murder of the child? prejudiced.” defendant are This Court has Therefore, respectfully I dissent to the occasions, see,

held on several example, majority writing of this Court on an issue State, (Tex. Burrell v. 526 S.W.2d Court, that is not before this Cr.App.1975), State, and Jackson v. holding further dissent to its that Beck (Tex.Cr.App.1967), S.W.2d 370 that after disposition “controls the of this case.” trial commences the indictment should not be amended as to form or substance.

fact, this Court has held that an amend

ment as to the substance of the indictment

cannot be made parties even the consent. State, (1934).

Morman v. 75 S.W.2d 886 Court Texas has even held if an indictment is amended as to it support substance will not even a convic BANKS, Delma Jr. Texas, tion. Calvin v. 25 Tex. 789 No. 69302. Again, the issue that majority of this Appeals Texas, Court of Criminal Court chose to review Beck was whether En Banc. the defendant received sufficient notice judge might that the trial later enter in the March trial court’s the affirmative find- Rehearing April Denied ing that the defendant used or exhibited a deadly weapon during the commission of

the offense. The issue that needs to be cause, however,

resolved in this is whether

appellant through was entitled to notice

indictment of upon what would be called

to defend at his trial. The two issues are daylight darkness,

as different as is to integrate effort to the two causes the

quicksand premises to reach the located at Austin,

14th and hap- Colorado which

pens to be the location of this Court’s mem- away

bers’ home from home.

I majority opin- find that if this Court’s stands, pleads particu-

ion and the State indictment,

lar offense in its then the ac- put

cused will be on notice that he must not alleged defend the offense that him,

against prepared he must also be against any

defend other criminal offense prosecutor judge might

that the or the trial gleaned

believe can be or inferred from the

indictment, with the defective indictment

being through cured the submission special jury.

trial of a issue to the

540 testimony have the We reviewed during

presented the voir dire of these two jurors they and find that were appli- excused. We therefore overrule Holmes, Longview, appel- Clifton L. for contentions discus- cant’s without further lant. sion. Huttash, Austin, Atty., Robert State’s ju- regard prospective third With for the State. McAfee, ror, applicant contends that erred permitting trial court McAfee to excused for cause of bias under be because 35.16, Although appli- Art. V.A.C.C.P. ON OPINION APPELLANT’S MOTION attorney objected grant cant’s to the FOR REHEARING trial, appli- State’s for cause MILLER, Judge. not on cant did contest the exclusion direct rehearing application This is a on for Thus, appeal. may before we consider the pro pursuant of habeas to the writ actions, propriety of trial court’s we 11.07, Applicant visions of Art. V.A.C.C.P. may must decide whether this issue capital was convicted the offense of time by application for raised for first punishment assessed murder and was corpus. of habeas a writ Code, death. V.T.C.A. Penal 19.03. This § Traditionally, corpus is available applicant’s affirmed conviction on di defects, jurisdictional to review State, Banks v. appeal. rect 643 S.W.2d Watson, (Tex.Cr. parte 601 350 S.W.2d denied, cert. (Tex.Cr.App.1983), 129 464 App.1980), or denials of fundamental 904, 259, 104 78 L.Ed.2d 244 U.S. S.Ct. Clark, parte rights. constitutional (1983). Applicant granted stay a See also (Tex.Cr.App.1979). S.W.2d 3, 1984, January pending ha- execution Russell, (Tex.Cr.App. 738 S.W.2d 644 11.07, supra. corpus pursuant Art. beas 1987). not The Great should be used Writ 29, February 1984, this Court vacated On litigate matters have been which should stay application for denied raised on filed post-conviction Applicant relief. prospective application improper for writ of habeas cor exclusion of a second alleged statutory trial as in pus juror grounds, court recommended be Banks, case, jurisdic- denied instant denied. We relief. Ex does not involve 69,032, nor consti- September No. delivered tional defects are fundamental such, applicant’s granted motion for rehear tutional considerations invoked. As We second for not consider a claim for the ing application on this habeas we will such of habe- application time in an for writ corpus on October first corpus. First, opinion is- we will withdraw the 26, 1984, September appli- sued on wherein pause distinguish must We application Bravo, first cant’s opinion Court’s Next, deny will corpus was denied. we (Tex.Cr.App.1982). grounds all opinion a written without case, original we ruled on submission in the for writ of habeas raised rising to level of constitutional “error alleged concerning the corpus except those first time for the error be raised ju- prospective excusal of three improper of habe- application for writ post-conviction Dillon, rors, Ervin and McAfee. in the raised though even opinion appeal.” Id. at 190. In our direct regard prospective jurors Dillon With rehearing, issued on the State’s motion Ervin, they applicant contends that stated, id. 193: we improperly excused under Adams v. were in violation Texas, 38, 100 venirepersons “Exclusion 448 U.S. L.Ed. S.Ct. Illinois, Witherspoon violates the Witherspoon Adams (1980) 2d 581 to the Amendments and Fourteenth 20 L.Ed.2d 776 Sixth 391 U.S. S.Ct. Constitution, “applies United States and a death en to all cases of habeas imposed illegally persons sentence so cannot enlargement be carried for the out.” custody held in manner restrained personal liberty[.]” in their Article 11.64.1 Thus, Bravo, supra, the exclusion of the prospective jurors inwas violation of the 11.07,V.A.C.C.P., Pursuant to Article af- constitution since it did not meet the re- in felony ter final conviction cases the writ Adams, supra, quirements or Wither- of challenge “legality appli- lie of will to the spoon, supra. Because this error was of confinement,” resulting judg- cant’s in a magnitude, constitutional we considered it “remanding ment of this Court either the for of corpus writ habeas petitioner custody ordering to or his [sic] though even the error was raised on release, may justify.” as the law and facts appeal. direct Id., 2(c) (d), 3. § § us, In the case before applicant contends Today, citing any precedent, without the prospective juror McAfee was exclud- majority pronounce: would have the Court procedural statute; ed in violation of a no “The Great Writ should not be used to Thus, constitutional issues are raised. the litigate matters which should have been Bravo, holding in supra, apply does not appeal.” Slip opinion, raised on at 2.2 the instant case. tone, admonitory While that sounds like sought The relief is denied. variously phrased a restatement of a com- mon law axiom that a of writ habeas cor- CLINTON, Judge, dissenting. of, pus purpose cannot serve the office or I, for, Article 12 of nor be a Rights pro- appeal. the Bill of substitute See § Extraordinary generally vides: 38 Tex.Jur.3d Writs may 34. As be true of maxims corpus § “The ofwrit habeas is a writ of rote, however, perpetuated by rep- heedless right, suspended. and shall never be etition has obscured intendment. its Legislature shall enact laws render the remedy speedy and effectual.” discovered, far So a similar version any person When is restrained in his parte Roya, appeared in first 85 Tex. liberty, the writ of habeas (1919); the Cr.R. 215 S.W. 322 albeit hav 11.01, remedy to be used. Article ing V.A.C.C. presented by decided the contention speedy P. To make it and effectual the id., merit,” applicant was “without 215 alia, Legislature enacted, inter has the 322-323, Lattimore, Judge S.W. at him for provisions Eleven, several Chapter Code Morrow, Judge up self and wound with a of Criminal Procedure. statement, viz: policy sort of

Generally, preliminary procedures “Notwithstanding plainly once our statutes accomplished have been provide may brought the matter is a case di- how be ripe decision, judge the rectly by appeal habeas or court to this court so that all “legal cause be questions shall determine whether fully presented, appel- be imprisonment restraint,” the attempts bring by shown for or lant the case here none, discharge applicant. corpus, presenting question habeas no parte Coupland, might Article 11.40. See 28 brought up not have been Tex. Chapter regularly Elev- (1955) royal

1. The formulations are reminiscent of a 3 Vernon’s Texas Constitution (All throughout opinion emphasis pledge John, King 680. this confirmed in the Great Charter indicated.) Charta, mine unless otherwise Magna viv impris- No freeman shall be taken or original majority 39. pro- 2. On submission a oned, disseised, outlawed, banished, or or or claimed that "failure to raise the issue as ground appeal precludes any ways destroyed, upon of error in the asser- pass or him, nor will we by post-conviction him, tion of the matter habeas upon by nor will we send unless showing change corpus, absent a of a in the law peers, by his the law lawful the land." ground justify or some other that would a belat- ed assertion of the matter." adjourned day sentencing do not think court should en- thus deny- We permit courage collateral attacks ing right appeal. Upon hearing corpus on judgments cases convicting court de- complained the matters of should where peni- nied relief and remanded brought by appeal. here Id., tentiary authorities. S.W. McKay, 211,] Tex.Cr.R. [82 appeal, Judge Brooks saw the On mat- cited; [1917], and authorities S.W. Court, applicant “seeking ter for the White, Tex.Cr.R. irregularities relief S.W. 850 [1906].” trial that been could have availed of Id., Dissenting Presiding 215 S.W. at Ibid. Given by appeal.” posture Judge pointed Davidson out the cause matter, analyzed governing the law “brings validity review and constitu- situation, viz: Ibid. tionality of the Zone Let Law....” “... writ of habeas is not us examine those two cases and authorities effecting as a available means of the cited. State, appeal. Perry v. purposes of an Typically applicant, and or- convicted Scwartz, 2 488; parte Ex 41 Tex. Tex. by judgment dered confined of a trial Oliver, parte Ex 74; App. Tex.App. 3 court, corpus sued out a writ of habeas Dickerson, parte Ex 345; Tex.App. 30 claiming entitlement to from custo- release 448, 17 S.W. 1076. The matters com dy discharge consequences judg- from of or plained by appellant would have Upon ment. denial of relief a lower merely judgment rendered the voida from applicant usually appealed court an ble, void, and not complaint the order, original applica- that rather than file true, being on This appeal. been made corpus tion in for habeas this Court.3 corpus the habeas cannot in Focusing on the more latter because right parte used as a Ex parte McKay (seeking than Ex point dis- Boland, parte Ex 159; Tex.App. 11 charge pretrial custody pursuant from Crawford, 36 S.W. 92.” Tex.Cr.R. indictment, id., 190 S.W. at capias after Ibid4 judgment Accordingly, the was af White, parte find in Ex 638), supra, we firmed. applicant facts are that was four- essential id., White, parte cited Ex In cases in years (though teen old at time that of trial id., parte McKay, and in 98 S.W. shown); upon then ar- fact was not that 639, 640, drew from 190 S.W. at the Court felony applicant ex- raignment for theft of Texas opinions Court plead pressed guilty; his desire to that the in criminal jurisdiction when it exercised him and trial court admonished matters and from learned treatis- law also punish- jury then instructed the to assess teaches, the true es. As White ment; applicant sentenced to two in is that similarly lesson cases situated years in the imprisonment and that while claims of a certain only after conviction cor- penitentiary he filed a writ of habeas by a cognizable character are habeas alleging lack pus judge, the district before forfeits his days court—not proof jury, to the of two denial present and, right to his claims because also trial after sentence prepare for did, or, appeal if he failed days make a mo- could but did not being pronounced, two and, court them. finally, tion trial to raise for new cases, jurisdiction coming as a explanation the Court we will entertain 3. for cases not An appeal original corpus.” on habeas grant from a below habeas writs of court Lambert, 37 Tex.Cr.R. Id., is in S.W. at (1896). Noting certain there are 36 S.W. 81 judges autho- which are matters over "district question of went hold the 4. The Court on to jurisdiction grant the writ entertain rized to during age applicant’s been raised should have corpus,” like the Court had habeas trial, he could not suc- and because it was not jurisdiction "to review but was also authorized corpus. cessfully of habeas invoke the writ therefore, lay appeal,” now "we such cases Ibid. that, extraordinary except in the rule down Scwartz, Illustrative is complete It Tex. dure. denotes a defect in the in App. (Ct.App.1877), 333; which the proceedings. Hurd, Court Tidd’s Pr. 435. applied common rules to resolve an ****** law judgment of county from a court writ of ‘The was not dismissing application for his habeas cor designed operate as a writ of error pus. Procedurally matter is somewhat certiorari, and does have their force complicated; germane developments are and effect. It not deal does with errors margin.5 summarized below in the As the irregularities proceed- render which it, object Court viewed “the sole of the ings but such merely, only voidable petition is to make the Perry absolutely render them void.’ purposes writ answer the of an State, Texas, 490.” mayor’s court, to the county court and to of the county revise the action original). in (emphasis 80-81 Fur Id., dismissing appeal, and to afford re ther, Dar holding the Court noted against dress county the action of the Westerlake, Police, rah v. 44 Tex. Chief of to award writ of certio- refusing (1876).6 it, applying the Court said: rari sought purpose affording county judge could have “[T]he against mayor relief action in the inquired case mayor whether Id., Upon case.” reviewing power ... has to hear and determine a authorities, applying the af * * * * charge battery. of assault and firmed, viz: he, believe, Nor could we have revised “ ‘A proceeding irregular- defective for county the action of the court in dismiss- ity and one illegality may void for ing refusing a certiora- appeal, his or in certiorari; upon revised error or but it ri, ground petition on the out in the set is only gives the latter defect which au- writ, for that in the embodied record corpus.’ habeas thority to discharge before us.” An irregularity is to defined be a want of Id., at 81. Accordingly, Court conclud- prescribed adherence to some rule or ed, see, anything “We are from unable to mode of proceeding, and it consists either us, in the record that the before relator has omitting something in to do that is neces- illegally liberty, been restrained of his sary orderly conducting for the due and county judge causing that the him erred suit, doing a in an it unreasonable custody to be remanded to the of the mar- improper time or manner. Hurd on Ha- paid.” shal until the fine and costs are Corpus, 333, citing beas Tidd’s Pr. judgment Thus the affirmed. Id., Chitty’s and 3 GenbPr. 509. 82. Illegality predicable is of radi- only, signifies Contemporaneously,

cal defects the Court decided and that which Slaren, principles parte of law as Ex contrary Tex.App. is (Ct.App to the from mere rules distinguished 1878). proce- by Convicted recorder for violation mayor’s guilty violating 5. After conviction in court for After assault a recorder found him ordinance, municipal applicant battery, applicant attempted perfect fire undertook to an but, validity by to of his conviction habeas appeal county county on motion of court court; corpus in criminal district because the attorney to want of dismiss for a sufficient testimony tending court refused to take prove to dis- bond, appeal purported the court dismissed his facts found recorder and remanded appeal procedendo mayor’s issued a writ custody, appealed. him to judgment; apparently applicant court to execute Court held: petition then filed a for certiorari to remove the long judgment "So as the of the recorder original mayor’s county case from competent remained in force appellant it was entertained; court but it was not committed to investigation of the to enter into an costs, jail payment for want of of fine and upon facts which the recorder entered his applicant sought court, county relief in habeas judgment. This be done an could hearing county judge and on writ the appellate court. applicant dismissed the case and remanded corpus cannot be made The writ of custody city Appeal marshal. to the use of to effect an or writ or error.” Id., Court followed. at 75-79. Id., at 389. city requiring ordinance op- license to provide answer, sufficed to and more public hack, erate a jail committed to likely than not also practically determined pay costs, failure to fine applicant the ultimate conclusion. did not take an appeal, but instead sued of Indeed, reading a close of his majority writ of habeas original pro- opinion in Roya setting reveals the ceeding in Appeals. the Court of Therein Judge which Lattimore would have the he asserted the ordinance was unconstitu- implement Court his notion. At the thresh- tional; agreed the Court and ordered him pains old he point takes out: discharged confinement, viz: “... No attack is made in the “It is conceded that the writ of constitutionality on the of the law under corpus cannot pur- be invoked for the applicant which was convicted. Nor on pose errors, correcting or to subserve any alleged procedure error in making purpose of an or writ of error. of conviction void.” 333; Perry Corp. Hurd on v. The Hab. Id., Instead, applicant S.W. State, parte Scwartz, Texas, 490; Ex contended that the indictment did not Ct.App. Texas and authorities cited. charge law, an offense under the his theory is proceed- rule otherwise when the being underlying statute had been im- ings sought inquired to be into are radi- pliedly repealed superseded. Only af- character, cal in their illegal, and void. majority ter the found his contention with- Hurd, ante: [Quoting Illegality prop- Judge out merit did Lattimore venture to erly predicable of radical defects et cet- suggest policy of abstention. Scwartz, parte (as

era supra)]. holding in Gregory, on, however, Later ques- [On sometimes the Ct.App. proceedings Texas un- tion place 753] was never asked in the first der which the is held are with- thought because the enough say it out authority appli- of law and void axiomatically, [and “A writ of habeas discharged cant is from confinement].” cannot serve the office of an An appeal.” Beland, Id., example 94 Tex.Cr.R. 667-668. (1923).8 252 S.W. at 530 And All other decisions cited in there is a host of similar decisions rendered parte McKay White Ex and are of like 1943, prior to digests as indicated in See, e.g., parte Dickerson, Ex vein. 30 pertinent annotations to constitutional and 448, (1891), Tex.App. 17 S.W. 1076 and au- statutory provisions. However, most arose thorities collated therein. None holds application validity for the writ to test every against judgment collateral attack a custody pursuant of initial or a restraint to prohibited by conviction is law because complaint offense, purporting charge to an brought the “should be misdemeanor, parte Ex whether e.g., parte Roya, supra.7 Ex by appeal,” here Drenner, 331, 125 Tex.Cr.R. 67 S.W.2d 870 Almost uniformly question the threshold (1934), felony or a “in advance of return of viz: integrity judgment, went to thereon,” parte Ex an judgment Whether the claim is the indictment trial Overstreet, 574, illegality irregulari- void for 129 voidable for Tex.Cr.R. 89 S.W.2d ty. pleadings 1002, (1936), usually Examination of the at 1003 or “after indictment to 540-541, interest, Judge regret 7. As indicated ante at Lattimore of much and we that under the notion, originated seems to have and the holdings settled of this court [that cases show that he continued to advance it as a appeal] not serve as an it cannot be considered." Garcia, policy, e.g., parte matter of Cr.R. Ex 90 Tex. Id., theory after 252 S.W. at 530. was 287, 892, (1921); parte 234 S.W. 893 Ex pronouncement his revocation and of sentence Matthews, 497, Tex.Cr.R. S.W. 96 258 477 right legal, accrued and "this was the (1924). adequate remedy;" statutory are citations 856, (1911), former now Article article C.C.P. penitentiary, applicant to the Committed con- 42.04, V.A.C.C.P., appeal is tak- "Sentence when power tended the trial court "was without en,” relating taking and three cases suspended revoke in that sentence” its ac- sentence, suspended e.g., parte vis a vis a Ex expired. tion came after term of sentence had found, Lawson, 419, question presented S.W. 698 The Court “The is one 76 Tex.Cr.R. merits,” release, parte Ex as the law and prevent ordering a trial on his Meers, may justify.” 465, procedure That 129 Tex.Cr.R. 88 S.W.2d 100 facts (1935) discharging prisoner. “exclusive” in requiring develop “a full —situations viz: 2, justification Its is stated in facts,” ment of the “entirely § and thus dif parte Roque Ex principle ferent governing statutes the writ “[P]resent more, 282, 1101, inadequate fully 60 Tex.Cr.R. 131 S.W. are of habeas conviction, Meers, L.R.A.(N.S.) parte [1910],” arising cover cases after final necessity prompt for supra, 88 at 101.9 S.W.2d [a] exist[s] deserving adequate petitioners relief for During period, course, Chapter as well as the of the state such specific procedures Eleven did not contain cases[.]” designed solely handling postconviction Except may justi “as the law and facts corpus. writs of habeas See Historical Legislature fy,” identify failed to “de 1943, Leg. Note to Article 11.07. Acts 48th However, serving” prisoners. op at first p. proposed Ch. to fill the void in Ricketts, parte portunity, 148 Tex.Cr.R. felony by authorizing any cases district (1945), firm 189 S.W.2d the Court judge presented with to set quo the status ante.10 ly preserved hearing, the same for to ascertain the facts and to order issuance of the writ returna- prescribing Thus common law rules is- along ble to this Court with the record cognizable post-conviction sues made, supplementary pro- and as well corpus prevailed, and re- those limitations ceeding whereby might this Court have the is, mained force —that until advent of determined, facts See, the end that this Court Question. The Substantial Federal McCune, judg- then hear the matter and “enter its e.g., 156 Tex.Cr.R. remanding petitioner ment custody (Tex.Cr.App.1952).11 In Roquemore, supra, applicant already right, accords to the exist,” such relator it does and, though been "nothing convicted an inferior court but found in the statute men- giving appeal, notice of "omitted or failed to enlarged legal right[.]" tioned which ... his n 1102; perfect appeal," his 131 S.W. at proceeding ap- it was obvious Because that the claimed the conviction was obtained under a plicant initiated was a collateral attack on what proscribe alleged statute that did not con- appears to be a valid of a court of Upon reviewing duct. the statute the Court "[tjhis competent jurisdiction, he cannot do agreed, "manifestly charged, so no offense is more than he can resort to writ of habeas charged upon any and none could be state of right ap- as a substitute for the of an record," ibid; therefore, case made Id., peal.” 189 S.W.2d at 873. id., applicant discharged, Court ordered at 1105. Then, proposition to demonstrate the latter say, That is to the conviction was vulnerable to Dickerson, quoted from Ex su- collateral attack on habeas because void pra, to the same effect as the decisions cited and illegality notwithstanding want of — 542-544, ante, thereby making discussed clear Minor, Compare 146 Tex.Cr.R. applicant raising irregularities that mere (1943) (on 172 S.W.2d 347 habeas in lieu of illegalities. rather than established appeal inquire “sufficiency Court will not into of an indictment of information where it is 11.Having capital murder been convicted of based on under which offense valid law an assessed, judg- penalty with the death and the charged," contrasting, e.g., Roquemore, could be having ment been affirmed direct Id., 347-348). supra. 131 S.W. at (The carefully noting, judgment of Court "The out."), applicant the court has not been carried 10. The Court understood to take the applied convicting the court for a writ of 119, position under has that amended article "he corpus pursuant to former article 119. legal right impeach the and set aside an restating jurisdiction the of the Court was After primarily appellate, apparently judgment compe- a of valid of only original jurisdiction its jurisdiction, tent and that he substitute being applications for habeas cor- to entertain corpus remedy writ of habeas for the accorded pus, of and further that here "the use of the writ judgment;” point- from such him corpus amounts to a substitute for an edly it noted the circumstance that the trial repeatedly appeal, held to be which we have "jurisdiction person, of the of the court subject unavailing," pointed procedural the Court out a matter, power as well as the to render law, vacuum in our state viz: Alluding judgment, questioned.” is not even connection, corpus "a of habeas “In this it should be remem- to die maxim that remedy ap- we do a statute in this cannot be substituted for the of an bered that not have ..., peal," thought states the Court that "unless said article state similar to those other 546 part opinion up process of its denied due of

latter the Court took the defendant was trial, viz: process, due at the and this Court refuses to the issue of law corpus applied issue the writ of habeas question “There is no but for, Supreme Court of the United power court not has the but it is its will reverse and remand the cause States duty prevent judg- enforcement of a proceedings to this for further not Court ment in a criminal case under obtained opinion inconsistent with circumstances and conditions which con- Court” process stitute a denial of due of law. know, also, provides Id., the state dissenting We 313 S.W.2d at 288. But cf. remedy whereby prisoner no a state Davidson, opinion Judge at 289: “We imprisonment may seek redress have so often said that the writ of habeas claimed to be in violation used as a can be substitute of federal rights, constitutional appeal that it should now axiomatic.” the federal courts Corpus Judg- Note, Habeas protect rights, will act to such federal See also — Deprivation Due Process Supreme [citations omitted].... [T]he ments — Conviction Is Grounds State State of the United States defines denial Court Proceeding, 37 Texas Corpus Habeas process trial as ‘the of due a criminal (Apr.1959). failure to observe that fundamental fair- L.Rev. 496 very concept jus- ness essential to the legislative in constructive the However ” tice.’ 1943, diligent tentions in the efforts of Id., at 172-173. Accord: Ex the Court implement and effectuate S.W.2d Puckett, 605, parte 165 Tex.Cr.R. 310 S.W. them when federal constitutional (1958): implicated, 2d lest its refusal be reversed were Supreme and remanded for prior a federal “[Because conviction] Bush, supra, proceedings, further punish- was not available to enhance (Tex.Cr.App.1958), and 313 S.W.2d at 288 allegations ment ... [thus] McCune, supra, at 246 S.W.2d the indictment are insufficient to sustain (1952), meet needs of they 172-173 failed to sentence[,] this Court exercise a life [will litigation increased federal habeas prevent power authority its] and concomitant demands of a obtained un- enforcement courts, petitioners re Court on and state constitute a de- der circumstances which Noia, Fay spectively, in such cases as process.” nial of due 391, 822, 9 L.Ed.2d 837 372 U.S. S.Ct. Id., 310 S.W.2d at 118. Sain, and Townsend v. (1963), U.S. Bush, In 166 Tex.Cr.R. 757-759, 313-319, 83 S.Ct. (1958), insane presumptively Therefore, in Acts L.Ed.2d 770 as an habitual of- defendant was convicted 1732, 7, Leg., p. 60th Ch. § counsel; upon his fender without benefit (Act), Legislature reworked 1734-1735 of habeas so application for writ pro expanded procedural requisites to hearing in claiming, ordered a the Court 11.07, Article duce revised V.A.C.C.P. convicting develop the facts. court to its earlier 1943 effort behalf Unlike done, record the Court con- That from the Legislature “deserving petitioners,” the allega- sustained his applicant had cluded relief, viz: obtaining provided standards for deprivation of due and established tions petitioner’s pleadings that render “would Confirming power and author- process. its felony conviction under the confinement illegal; judgment enforcement of a ity prevent to ” material proof going to issues obtained, reasoned: the Court thus re- illegally petitioner is “whether proceeding here is new to “While 1967, ante, strained,” 1734-1735. Acts Court, clear that where it is now (Tex. Young, In 418 S.W.2d regular on its conviction, after face amended record, Cr.App.1967),the Court construed appear it is made on Id., at 172. whereby remedy provided to meet the 246 S.W.2d a here seeks to invoke." relator situation which light develop- jurisdiction convicting Article 11.07 in of of several want ments, including concepts of the to enter it conviction was had in where “[n]ew meaning process of due by announced process. literally, of Taken violation due Supreme States,” Court of the United they prohibit judicially imposed barriers at recognizing, judgment “A of conviction ob- the threshold of access to the courts aby in process tained violation of due of law seeking of convicted felon this “writ jurisdiction want void the court of right.”12 judgment," to enter such and that Article by litany, Recited rote as a the axiom effective,adequate “an provides 11.07 that a writ of habeas cannot substi- speedy post remedy conviction in that it appeal tute for an becomes such a barrier. applicant offers the opportunity for a However, explicated by as it was Mr. Hurd full and fact-finding fair state court hear- by and other scholars and understood our ing of the sort by dictated ante, courts, appellate 542-544, see Sain, Townsend v. Court in [supra].” there is no barrier. S.W.2d, Act, at 826. It set out the 1967 clearly indicating changes all made Habeas is reserved for considera- Legislature, suggested examples tion of certain asserted errors that are process due warranting violations relief. character, viz: extremely radical “il- Id., at 827-829. legalities” contrary principles to basic law, including those of constitutional di- alia, concluded, inter

The Court that its mension, rendering proceeding construction of a void. Of support the Act did indeed course, holdings provides they may presented ap- that the statute ef- also be on “an fective, adequate speedy post peal. However, convic- lesser claimed errors —“ir- remedy,” tion met the “need of Federal regularities” implicating no more than fact-findings Courts for as well as a record procedure cogniza- mere rules of —are they may from which determine whether a and, therefore, ble on habeas hearing in Federal required” Court is only be redressed The latter produces “fact-findings which the Court of and other minor defects must be addressed Appeals Criminal or the Federal Courts perhaps in some other avail- Further, may adopt.” its construction was forum, agen- able such as an administrative concepts found to be consistent with new cy possesses clemency powers. or one that process of due and rules of Townsend v. actually Thus what the axiom means is Sain, supra, concerning when a federal illegali the fact that those certain claimed grant hearing, habeas court “must includ- ties have not been raised on will not (Fay ing the exhaustion of state remedies preclude seeking and a Noia, Id., supra).” at 830. granting court from relief from il sum, Legislature in 1967 the devised confinement, legal postconviction custody and the Court sanctioned construction a Clark, Compare restraint. system remedy to render the via habeas with (Tex.Cr.App.1979), effectual,” corpus “speedy and consonant Coleman, (Tex.Cr. 599 S.W.2d 305 the admonition with and mandate of Article App.1979), dealing error both with I, Rights. of our Bill of Thus the § charge jury. provisions guarantee constitutional avail- majority says In the instant cause the ability pursuant legis- of the Great Writ excluding prospective juror error “on designed lative enactments to enable an grounds” may statutory not be considered applicant make a collateral attack and against “for the first time obtain relief a final corpus,” in that the contention is conviction rendered void not for rea- procedur- “in sons under the common law but also for the excusal was violation of a I, liberty. “open person deprivation 12. courts" mandate of Article and from See § requirements Commentary following and the "due course” 19 seem Interpretive § § 13 and closing to forbid courts from their doors to seeking "injury" persons relief from done to statute,” 391, 822, majority al which the identifies U.S. S.Ct. L.Ed.2d (1963). 35.16, globally Slip as Article V.A.C.C.P. fact,

opinion, In applicant’s at 540-541.13 “What is remarkable about the [Great] ground Liebman, constancy.” third for relief is that McAfee was its is Fed- [W]rit by Corpus any excluded the trial court without eral Habeas Practice and Pro- (The Company, cedure Michie 1988 edi- legal ground “in right violation of [his] tion), 1, 2.2, page Vol. process equal law, to due and protection § provided by him the United and Tex- for centuries has States Great “[The Writ] Brief, function, as served the same essential Constitutions.” at 7. essentially intergovernmental the same exclusion, ap An erroneous as this one junctions Anglo- and intercourt be, pears to purportedly based on a state justice, of system American of criminal statute still raise a constitutional due judicially ferrying persons whom process See, question. e.g., restraints, government, through sep- has Williams, 461, (Tex.Cr. 748 S.W.2d at 464 rights arated from their under the funda- App.1988), Hughes, 728 S.W. mental of the Land to the safe har- Law 372, (Tex.Cr.App.1987), 2d at 375 each of by simply It is bor afforded that Law. “proce which involved exclusions under a accurate, then, say that the same statute,” dural as did indeed Bra boat, ferry traversing the same constitu- vo, (Tex.Cr.App.1982), “dis crossing, tional somehow used not to be tinguished” by majority. herein ferry the amount of its boat—because ultimately might reject While the Court cargo trips frequency of its have it, majority because the for the refuses Liebman, Id., increased over time.” wrong reason to examine the constitutional page 12. by applicant, respectfully I claim made dis- V.A.C.C.P., 11.07, postcon- This is an Art. sent. corpus proceeding, viction writ of habeas Banks, Jr., appli- which henceforth Delma TEAGUE, Judge, dissenting. cant, counsel, through “Scrap- Hon. Clifton “The is a writ Holmes, py” gives why his five reasons right, suspended.” and shall never be capital murder and sentence conviction for Art. Texas Constitution. § should aside this Court. death be set Great is the most celebrat- Writ] “[The original submission, appli- denying On Blackstone, English ed writ Law.” relief, any cant this Court addressed Eng- on the Laws The Commentaries of the five contentions that were two (1762 editions). land and 1769 applicant. presented on behalf of How- proclaimed by Great Writ ever, cause when this Court ordered this among the immemorial Colonists as submission, filed and set for this Court to them from their an- descended following: post- order such stated the “We 85, 75 parte Yerger, cestors. Ex 8 Wall. set for sub- conviction filed and 85, 95-98, 19 L.Ed. U.S. En without mission before the Court Banc pro- Thus, argument.” the Great Writ was all of the issues oral application, applicant presents claimed a moderate in his brief, two of precious heritages Anglo- argued just in his and not “one Noia, issues, by this subject to review Fay American civilization.” 372 those were ”hav[ing] judge inquired making prosecutor then into McAfee’s 13. In based any juror any per- knowledge “that if has than it on his statement this defendant more about scruples any prej- bias consciencious any jury, [sic] haps of this ... than other member law," elaborating, against phase him; udice upon know someone else that did not knowing both individuals involved “Mr. McAfee receiving de- answer the an affirmative did, stating having as he in this [sic] event, clared, going to excuse Mr. “In that I’m just jury oath under Article [to 35.22] 1376-1377]. causef.]’’ [S.F. McAfee for him, subject couldn’t remove that from challenge [he] that, applicant, McAfee record reflects like would submit on for cause we [S.F. 1377]. black. The trial 1375-1376]. that basis.” [S.F. explicated For not in the Court. reasons effective assistance counsel on direct original opinion, appeal very this Court to reason majority chose not for the gives “pour” him presented opinion review all of the issues that were to out. Another applicant. opinion gives on majority “pour” behalf reason the to applicant alleged out is that an violation submission, original On a majority of this statute, 35.16, V.A.C.C.P., Art. such as applicant Court held that because did not Writ, scope not within the of the Great as object judge’s excusing at trial to the trial applied postconviction to habeas Ervin, he, venirepersons Dillon ap- proceedings. plicant, precluded complaining was also, by way majority opinion expressly, about their excusal of the Great The but Writ, applied postconviction proceed- to us that henceforth it is tells where ings. applicant post- asserts for conviction relief a denial of fundamental or rehearing Now on this again ex- rights, constitutional or asserts therein pressly fails to applicant’s review all of con- that his conviction is void of a because lack tentions, particular his claim that the trial court, jurisdiction by the trial that he judge excusing erred in venireperson L.C.Me may powers then invoke the of the Great Afee, Sr., pursuant challenge to the State’s Writ, applied postconviction proceed- cause, applicant’s trial coun- and over ings. objection; sel’s his claim that his because Contrary majority opinion, to the I find appointed attorney appeal on did not applicant presents the issue that raise the Me Afee issue on direct venireperson concerns Me Afee should be did not receive the effective assistance of Court, reviewed but must be done appeal; and, counsel on direct lastly, his conjunction with his claim that he did not claim that the evidence was insufficient to receive the effective assistance of counsel support jury’s finding affirmative appeal. course, on majority direct Of special two, 37.071, issue number see Art. opinion applicant’s should also review con- quarrel V.A.C.C.P. I have no with the tention that the evidence is insufficient to disposition majority opinion that the makes finding jury’s sustain the affirmative venirepersons as to Dillon and Ervin. special issue number two. See Jackson However, fully appreciate applicant’s Virginia, 443 U.S. 99 S.Ct. judge contention that the trial erred in ex- (1979). Therefore, L.Ed.2d 560 I file this cusing venireperson objection Me Afee over However, dissenting opinion. my I limit pursuant to the State’s remarks the refusal of this Court cause, necessary it is to review that claim applicant’s complaint consider the tri- about in tandem with his claim that he did not excusing conjunction al Me Afee receive the assistance of counsel effective with his claim that he was denied the effec- on direct because Me Afee issue appeal. assistance of counsel on direct tive Thus, presented appeal. was not on direct appellate counsel was ineffective because really What troubles and disturbs me present he did not the Me Afee issue on majority opinion about the is some of the appeal, applicant sufficiently language direct has ex- loose that is found therein that is plained why presented reject applicant’s the issue re- used to contention However, garding direct the Me Afee issue. holds, regarding majority opinion what majority opinion rehearing refus- postconviction what now be raised via es to review the Me Afee issue for two 11.07, corpus, pursuant to Article reasons. One reason is that did supra, comports with “the movement” that appeal; not raise the issue on direct thus presently quarters in some of this exists by way he cannot assert this claim now scope post- Nation-to restrict or limit the postconviction corpus. prob- proceedings. conviction habeas applicant’s lem this reason is that with 15, 1215, History Me Afee is tied us that on June claim about the excusal of teaches King England Runnymeade met at in with his claim that he was denied John of with Archbishops, Bishops, Abbots, Burger sions “the Court” and “the Earls, Barons, Justiciaries, Foresters, Sher Court”, Rehnquist appear which to have iffs, Governors, Officers, Bailiffs, and oth goal, purposes as their for of federal er servants, trusted and faithful and en law, strong criminal desire to return us to Magna tered into the Although Charta. eighteenth century, at least the if not be- origin of the Great Writ yet has not However, yond. in addition to the now established, firmly been most historians be “Rehnquist Court”, others who advocate through lieve that it comes to us princi cutting scope back of the Great ples Magna set out in the Charta. In re Writ, applied postconviction as proceed- to times, scope cent of the writ was ex ings, are members of the law and order panded virtually any to cover situation in community; members of the law enforce- which the habeas court believed community; ment and those individuals in that the defendant wrongfully had been society our who advocate the crime control 2See Criminal convicted. Tech Defense justice. model of criminal I find that all of (1986 edition), niques Thus, the § 44.02[2]. groups, these as far as the Great Writ adaptable Great Writ became to time goes, applied postconviction when to habe- changes, capable and also became of wider corpus proceedings, goal as have one application than the gave mischief which its objective in mind: to curtail as much as States, E.g., Weems v. United birth. 217 possible scope Writ, of the Great as 349, 544, (1909). U.S. 30 S.Ct. 54 L.Ed. 793 applied postconviction to sum, undergone the Great Writ has proceedings, perhaps and even to eventual- metamorphosis subject and has become the ly eliminate the Great Writ from our crimi- creativeness, judicial of innovativeness and thinking new, nal law. This kind of is not Carolina, Glover v. North F.Supp. 301 War, During however. the Civil efforts 364, (E.D.N.C.1969). 366 Even the Su suspend were made to the Great Writ. See preme Court of the United once States parte Milligan, 2, 2, 4 71 U.S. Wall. that, purposes declared for of federal habe- (1866). 18 L.Ed. 281 Interestingly, there is law, as contrary “restraint to provision no in the Bill Rights Federal law, by authority fundamental whatever pertains that to the Great Writ. imposed, by could be redressed the writ of Noia, Fay corpus.” dispense postcon- 372 movement to U.S. with 822, (1963). 83 9 probably originated S.Ct. L.Ed.2d 837 viction remedies in the Sain, Also see Townsend v. 1970’s, 372 U.S. early Burg- soon Hon. after Warren In 83 S.Ct. 9 L.Ed.2d 770 Supreme er became Chief Justice of the Young, (Tex.Cr.App. S.W.2d 824 Burger Court of the United States. Since 1967), even this Court went so far as to Justice, was Chief the movement has un- any judgment hold of conviction ob doubtedly by been influenced the “Rehn- law, process tained violation of due quist hostility Court’s to of crim- implicitly due course of law under the generally postcon- inal defendants and to Constitution, subject being Texas specifically.” viction remedies and relief 11.07, supra. set aside under Art. Wilkes, Federal and Postconviction State (The Remedies and Harrison Com- however, Today, great there is a move Relief pany, edition), page Today, in this ment Nation to restrict or limit the “Rehnquist there even a Committee to Writ, scope applied post- Great Abolish Access State Prisoners to Fed- corpus proceedings conviction habeas Convictions”, eral Court Their Review of as most of us have come to know it. The which committee is headed former Jus- foreign movement to return us to a time Powell, Writ, tice Lewis who a natural applied postcon- when Great position see, because he has often been referred proceedings, meaning, viction had little out-spoken antagonist as “the Federal parte Banspach, example, 130 Tex. Habeas,” and (1936), came because of the Cr.R. which about S.W.2d Minor, on the opinions that he wrote when he was 146 Tex.Cr.R. (1943), through advocating deci- the restriction actually comes to us following: Thom- postconvic- of the Great shelves such books as of the use Writ Essy Magna on the involving son, An Historical proceedings tion federal courts prisoners. (1829 edition); I King previously convicted state Charta John Rehnquist’s and ask: If com- pause must Legal Remedies Bridge, A Treatise closing mittee succeeds the federal Prohibition, Habeas Mandamus courthouse doors to most claims that Texas Quo Certiorari, and Corpus, Warranto urge attempt in an inmates want Maitland, edition); (1891 Pollock they unlawfully were con- establish (1899 edition); Law History English victed, this Court further closes its Dowling, Law Cases on Constitutional doors to inmates of this State who want to Roots Schwartz, (1959 edition); of claims, make like are these where individu- History A Freedom: Constitutional of supposed go in als order to seek relief on (1965 edition); Sokol, England Federal Ha- they unlawfully a claim that were convict- (1969 edition); Sharpe, Corpus beas ed? (1976 edition); Corpus Law Habeas dissenting opinion In the I filed in that History A Habe- Duker, Constitutional parte Empey, (Tex.Cr. 757 S.W.2d (1980 edition); Mian, Corpus American as App.1988), pig: I like a stuck “What wailed Law, Corpus: History, and Poli- Habeas going is on in this old house that causes (1984 edition); Wilkes, supra; and tics pro ‘nunc this Court to turn the law of Liebman, supra. By keeping these and postcon- topsy-turvy, tunc’ and the law of other that relate to the Great Writ books upside corpus viction writ of habeas libraries, I on the of our law school shelves down_?” (775). I now confess: students, at least until believe that law statement, making I had not considered arrive, get a kick out Orwellian times will the trickle from that the “cut move back” Writ, reading as about the Great as well ment, originated Washington, in which time precious and valuable to see how much D.C., actually raging had become a river trial and judges, both and some some courts control, spilled out of over its banks. in who, days, spent in the old appellate, back course, if I Of doubts about the individuals, protecting rights of who today, today’s majority opin matter before permanently sus- might otherwise have ion me that the “cut convinces back” move conviction, tained or suffered an unlawful postconviction in the ment writ of habeas and, instances, wrongfully even some corpus of our is area State law now well premature death. suffered Texas, especially entrenched in arrive, However, times until Orwellian Appeals, highest Court of Criminal forget a moderate Su- we should not what of this see criminal court State. Also Brown, preme previous- (Tex.Cr.App. Court of the United States Christian, and 1988), pointed construing 760 S.W.2d the federal ly out (Tex.Cr.App.1988). statutes, corpus see 28 U.S.C. habeas 2255: the ‘rhetoric 2254 and “While §§ majority opinion I find that the changed lit- celebrating corpus has habeas performs surgery on cause such serious (footnote deleted), it tle the centuries over Writ, applies postconvic- as it the Great true that the functions nevertheless proceedings, corpus tion in no less undergone change drastic have ...’ case, penalty than a death that it would be narrow, static, [Hjabeas corpus is not ‘a of this appropriate for those members Cunning- v. Jones remedy,’ formalistic majority opinion to Court who vote for the ham, 373, 9 L.Ed.2d 371 U.S. 83 S.Ct. go to it the last just ahead and administer (1963), must retain the one which but However, rites and then cremate it. be- through of form and ‘ability to cut barriers Writ, cause I am confident that the Great omitted.) (Citations procedural mazes.’ applies postconviction proceedings, it the writ demands that very ‘The nature of someday phoenix, like will arise with the initiative I it be administered years, another 500 the ashes to live the miscar- flexibility essential to insure urge strongly our law school librarians its reach are sur- library riages justice within respective from their remove (Citations deleted.) faced and corrected.’ special that it must be attended with a set Thus, consistently rejected we have inter- procedural protections designed to as- pretations of the habeas statute reliably sure both that the courts have stifling that would suffocate the writ in guilty identified those defendants who are formalisms or hobble its effectiveness with capital of a crime and for whom execution the manacles of arcane and pro- scholastic appropriate is an sanction delet- [footnote Hensley requirements....” cedural '..., ed], and that ‘the death sentence [is] Court, Municipal 411 U.S. 93 S.Ct. be, appear[s] based on reason rather (1973). 36 L.Ed.2d 294 Also see (Footnote caprice than or emotion.” delet- al., England, Pavesick v. New et 122 Ga. ed.) Because habeas review is de- 50 S.E. signed to assure that the state courts have dissenting opinion In the I filed in provided process guilt due and that the Renier, (Tex.Cr. 734 S.W.2d 349 sentencing decisions of those courts are App.1987), attempted I to set out the histo deleted], reliable it follows [footnote ry Texas, applied the Great Writ remedy especially crit- postconviction proceedings, and thus will not capital high ical in cases because of the repeat I here what stated therein I because process constitutional standard of due and find that it is sufficient to state particular reliability need for in such following purposes dissenting for of this 2.2, page cases. [Footnote deleted.].” § opinion: “Our habeas has main law agree I with Liebman states. what tained basic structure for at least 130 [its] Renier, 358; years”, page that instance, applicant In this asserts that 11.07, V.A.C.C.P., provisions of Art. judge’s venireperson the trial excusal of provide “statutory authority for resolu process Me Afee violated his “due tion of contested factual issues material on equal protection under the law” question petitioner whether Constitutions, Federal and State and that illegally restrained under a appointed attorney his court on was ”, case ... felony in conviction a ineffective because he did not raise the Me 828-829; Young, supra, and that it is appeal. majority Afee issue on direct always any available to obtain release of opinion applicant’s treats contention as as- unlawfully one who is restrained of his law, serting error as a of state see matter liberty. wrong I more ask: What could be 35.16, V.A.C.C.P., Art. and concludes that denying ful in someone relief where he has improper prospective “The exclusion of a a valid claim that his conviction is void convicted, juror statutory grounds does tried, ... not given he was because such, jurisdictional defects ... As by unlawfully impan the death sentence involve jury, eled and that issue was not raised on for we will not consider such a claim moment, I appeal? direct At the cannot first time for writ habe- anything prevent the think of that should corpus.” majority opinion also being applied to such a Great Writ holds the issue was not that because Georgia, v. Davis E.g., 429 U.S. situation. presented appeal, “The Great direct (1976); 399, 50 L.Ed.2d 339 97 S.Ct. litigate matters Writ should not be used to 648, 107 Gray Mississippi, 481 U.S. S.Ct. appeal.” raised on which should have been 95 L.Ed.2d (Page 540 opinion.) The Me Afee issue was not raised on direct because implicate Applicant’s contentions do not appointed counsel chose not to raise felony mill case. the is- ordinary run of the sue for gives reasons he us in presently sentence of his affi- Applicant under By on file in cause. what davit that is Liebman, supra, points see out death. holds, majority opinion are we to not “The fre- that book occurred even concern ourselves with what quently recognized imposition has the Me Afee why the trial court and penalty uniquely is such a final the death appeal? presented not on direct step viewpoint from the both issue was and draconian I the trial individual believe that we should consider society and of the condemned decisions, record as well as the reason counsel disqualified 'on Court’s he wasn’t appeal gave why as to he did not raise the judge gave. the reason the trial See Me Afee Williams, supra, issue on direct Anderson, supra. Lee, Clyde appointed Hon. the court attor- The trial record of this cause reflects ney represented applicant who on direct during his voir dire examination Me appeal, informs us in an that is in affidavit Afee stated that he knew both why the record he did not raise the issue on victim, and his and that because of this it “All appeal: direct issues that not were would “extremely difficult” for him to raised on appeal were not raised because juror. sit as a Me Afee nevertheless stat- Cooksey either Mr. had waived them not my ed: “I would do juror] best if I [as making objections to them at trial or not were chosen objec- ...” Over [to serve] tion, making proper objections pursuant to said issues to the State’s cause, during trial.” Afee, the trial Given the state of the excused Me record, because, I clearly find that Lee judge, the words of the mistak- trial en Cooksey timely proper- Me Afee were seated had not juror, as a “he would ly objected judge sustaining know more about the to the trial defendant and the jurors challenge' victim than the excusing other State’s for cause and would know By about them.” Clearly, this Court’s En Me Afee. Banc the Me Afee issue State, decision of Williams v. should presented ap- have been on direct 538 (Tex.Cr.App.1984), peal. and this Court’s panel opinion State, of Anderson v. I today’s majority opinion ask: Does (Tex.Cr.App.1982), S.W.2d 851 upon which actually day return us to that when the Williams, supra, relied as authority, veni- rule was that a habeas court “would reperson Me Afee was not shown as a irregularities not review or erroneous rul- matter of law to have disqualified been trial, ings upon serious, however and serving juror from as a in this cause. Our that the writ of habeas liewill state law is clear: person Before such a pris- case the under which the disqualified serving juror as a in Tex- oner is absolutely detained is shown as, much, much more must be established void jurisdiction for want of in the court the record. The clearly trial erred pronounced it, jur- either because such in sustaining the challenge State’s beginning, isdiction was absent cause, court appointed counsel also because it was lost in the course of the raising erred this issue on direct proceedings.” Mangum, Frank v. U.S. 35 S.Ct. 59 L.Ed. 969 Why did appointed ap- counsel on applied, egregious This rule no matter how

peal not raise the Me Afee issue on direct been, might the conduct of the trial have appeal? punishment and no matter what was as- Frank,

The record reflects Lynn supra, that Hon. Cook- sessed. the defendant sey, tried, convicted, the retained attorney represented who was and sentenced to a trial, timely premature at his death in a mob dominated atmo- objected to the judge’s excusing sphere. trial Me Although gave the courts Frank because, Afee relief, the words of the Georgia trial no the Governor of ordered judge, “if Me Afee had been selected to be his sentence of death life commuted to jury, Frank, he imprisonment. however, would know more about the did not get defendant and the victim than the other to serve the life sentence because a jurors citizens, would know about them.” Cook- of Atlanta mob incensed at the sey’s objection actions, bastille, judge’s the trial sustain- Governor’s stormed the ing cause, Frank, the State’s hanged and seized him the neck. Afee, excusing Me following: appears was the “Mr. It now that Frank innocent of was Me disqualified Afee was not under the law the crime for which was convicted and Rawls, of the State of Texas or under the laws of sentenced to die. See “After 69 And, Silence, the United States.” under Lynching Years of Victim is Cleared,” 8, 1982, The New York March

Times, A12, RODRIGUEZ, Jr., Relator, col. 1. Frank the movement to curtail the Until Great Writ, applied postconviction as APPEALS, EIGHTH SU- COURT OF ante, corpus proceedings, got see under DISTRICT, PREME JUDICIAL Writ, way, scope ap of the Great Respondent. plied postconviction corpus pro ceedings, expanded permit virtually No. 70000. any kind of collateral attack on a convic Texas, Appeals of Criminal tion, long as the individual been En Banc. convicted, finally was restrained of his lib erty, and his claim asserted a violation of April Rarely the federal constitution. was the May Rehearing Denied claim made that the conviction was void particular of a violation of the because However, today,

state constitution. more looking

and more state courts are to their constitutions,

own state rather than to the constitution, making

federal determina

tions of their citizens have whether Duncan, “Terminating

been violated. See Guardianship: A New Role for State Journal, Num

Courts,” Mary’s 19 St. Law Ponton,

ber 1988. Also see “Sources 20 St. Rights,”

Liberty in the Texas Bill of Journal, 1, 1988,

Mary’s Law Number Rights: A The Texas Bill of

Harrington,

Commentary Litigation Manual Publishers, 1987).

(Butterworth Legal Of

course, right by jury protect to trial constitu

ed both the federal and state Thus, issue and the

tions. the Me Afee

ineffective assistance of counsel light

issue should be reviewed Constitution, if not the federal con

Texas majority opinion errs

stitution. The I

reviewing issues tandem. those two such action.

dissent to dissenting opinion with my

I conclude only hope that the I can

these remarks: “merely tempo today is

majority opinion See Mur bending the wind.”

rarily with Times in Crisis

phy, The Constitution xiii, edition), quoting Com

(1972 page Morris, two famous American

mager and

historians.

Case Details

Case Name: Ex Parte Banks

Court Name: Court of Criminal Appeals of Texas

Date Published: Mar 29, 1989

Citation: 769 S.W.2d 539

Docket Number: 69302

Court Abbreviation: Tex. Crim. App.