Ex Parte Smith

Korioth, Dallas, Atty., Sue Asst. Dist. Mat- Paul, Austin, Atty., thew Laroyce State’s State. parte Ex SMITH. Lathair No. 36512-01. Texas, Appeals

Court Criminal En Banc. OPINION July WOMACK, Judge, delivered McCORMICK,

the Court which Presiding Judge, MANSFIELD, KELLER, HOLLAND, joined. Judges, PRICE and previous opinions Our are withdrawn. By separate order which was entered on April 22, the Court has dismissed this post-conviction days relief was filed 129 late. The statute which was enacted 1995 to regulate procedure for these cases re- quires to be filed within 180 days. Criminal Procedure article convicting court good find petition cause to file the as late as thereafter, applicant but “an cannot good untimely filing establish cause for of an day filed after the 91st after the 4(f). filing applicable date.” convicting this case the court gave extension, applicant 90-day gave another, unauthorized, applicant 30- day extension. On the the trial unauthorized, granted ex- tension, Administrator the Executive informed the counsel that such an extension was unauthorized ad- rely vised counsel not to on it. The reliabili- ty extension was mooted when failed to meet that dead- line. petition filed 9 unauthorized, 30-day expired. extension There is no claim that relied in good an improper faith on order of the trial Ramos, court. 977 S.W.2d 616 Cf. Cline, Houston, Cynthia appellant. J. (Tex.Cr.App.1998).1 suggestion supplemented, 1. The specified, "Any has filed a for recon- and our order sideration which he claims that his late supplemented application deemed shall be April was authorized order of Court's successor, original, application.” not a No other gave permission him to file a skele- application by action was taken on the skeletal tal so that the time limits of the court, parties, this Court. Penalty federal Antiterrorism and Effective Death has been supported Act could tolled. His claim is not participants original applica- treated all as the by the record. His motion and our order con- statutory requirements applied. tion to which the templated that the skeletal would be is, legisla- suppose, we filing permitted only application?”6 Late is if the recognition impose not timely it need presented have ture’s claims could not has incen- plaintiff limits on the who no if there a violation of the United time or judgment it Constitution, execution of the appli tive to but for which the States or guilty would not have been found obtained. cant application does sentenced to death.2 says in that our action Judge Overstreet exceptions any suggest of

not either by dismissing appli- obeying the says filing. for The statute excuse late barbarism,” and that we cation “borders on in such circumstances court shall issue “th[is] thinks “fair” than do what he is rather should dismissing an an order Our oaths are is lawful. Post 614. what abuse of the writ under this section.”3 laws uphold of to the constitutions state; they a country are not commission dissenting judges say that not Two we do us think is fair. to do what a obey respond to this law. write to have We by legislature and passed This to their statements. governor, in accordance approved government. with our constitutional form Judge Baird us to some wants is this court shall dismiss this The law clear: thing convicting that neither court nor filed late. If the because was asked to to us do: entertain barbarous, re- law is should matter, original as an governor commute or peal it or the should directly in this court. The short is answer subjected those to it. In the pardon who may employ procedure. a such meantime, must it. follow “Article 11.071 now contains the exclusive procedures for the exercise of this Court’s MANSFIELD, Judge, concurring. corpus jurisdiction in penalty cases.” article Texas Code of Criminal Procedure 216, 221, (Tex.Cr.App.1996) (opinion of 11.071; 4(a), requires § an application P.J.) McCormick, (emphasis original).4 corpus “must be filed for writ convicting court no later than the 180th Nothing Judge need more be said of day ap- date the of criminal court opinion, Baird’s but difficult leave is to ” 2.... peals appoints counsel under Section legislative unremarked the that the assertion 4(f) § allow the con- interpreted have to We intent behind 11.071 would be fur- victing grant a extension for entertaining thered a appli- late-filed effect, meaning, application, cation of that defiance statute.5 ap- counsel has 270 from the date screamingly obvious intent Article 11.071 pointment to file Section procedures up is to the habeas clearly comply failure to 4(g) provides that eases, retaining exceptions while for filing the application with the deadlines for permit filings late a waiver of all described above constitutes who should not have been convicted or sen- grounds relief available This a tenced death. not such had his been filed a anyone person, nor contend that he is. does manner.1 question, The answer Baird’s ease, “[Wjhy present In the counsel did the State allowed unlimited upon request, respond not file within initial 180- a 11.071, 5(a). misleading opin- § from attached to 2. See Tex.Code Crim. labels Pro. ions. added). 5(c) (emphasis post 5. See at 614. 6. Post at 615. Although Presiding Judge opin- McCormick's concurring opinion, joined it was ion labeled are not to file 1. Certain claims barred failure by majority regarded forth in Texas one’s as set we have as an Court. Since 1997 article Procedure Criminal procedures prevent such instituted internal day filing period represented by appointed by nor within the ex- cant is period. expiration tension After of the 90- application presents this Court. extension, an additional twenty allege received claims for relief which serious extension of from constitutional violations. the ma- court, though this extension is not authorized dismisses the because coun- by the file statute. Counsel did not the timely. sel did not file the at application during that unauthorized Believing majority willfully § 5. the violates later, Finally, days extension. filed counsel dismissing the intent of article 11.071 the the late. application through no fault of the con- —39 inmate, I demned dissent. agree I that would be unfair to dismiss applicant’s application having as been un- counsel the filed had filed within 30- I. by granted unauthorized extension the Torres, In Ex Parte 943 S.W.2d 473- upon court. Reliance the court leg- the considered granting order that extension not unrea- debates in both House and islative the good sonable and cause for establishes legislative to determine Senate intent for first 30 of the the filing violation of Torres, enacting article 11.071. we re- deadline. Given this is a case and stated debates as follows: dismissal of an for habeas relief Representative Gallego, ... the House having untimely potentially filed bill, sponsor of the emphasized the intent consequences, life or death it would be an person to limit a convicted “one bite at injustice for, effect, punish applicant apple”: relying good giving faith on a court order that, we tell everything And individuals what, time to in all additional file you possibly time, can raise the first likelihood, his one for state expect you initially, to raise it one habeas relief. shot_[Answer- apple, bite one However, nothing justifies in the record questions]. ing think we’ll have less excuses the additional filed, attempting because what we’re the utter Given here say, everything is to raise at one good absence of cause for this additional get apple. time. You one bite If delay, ignore simply this Court cannot you have to stick the kitchen sink Legislature’s applications determination that there, And, put it all in there. we will corpus relief habeas under Article 11.071 claims, go through one those at a specified must be deadlines. filed within time decision, this, make but none of post-conviction corpus As a statuto- you one—every week file a new one— rily-based relief,2 form it is our task to petition currently basically which is what Legislature, follow set forth the law as happens. and we are not free to substitute our own floor, 18, 1995, S.B.440, May Tape House personal beliefs/feelings fair as to what is A (ellipsis Side and bracketed materi- given Legislature’s clearly-expressed in- inserted). al While the limit- tent. apple, they ed to one bite comments, join opinion With clearly contemplated bite would the Court. corollary be a one. The recognized full requiring raise all his BAIRD, Judge, dissenting. every at claims once is that claim raised prior dissenting is withdrawn. would proceeding in that initial be consid- ered and decided.1 post-conviction application

This is a Therefore, corpus pursuant writ of filed to Tex. intent of clear, Appli- enacting provide Code Crim. Proc. Ann. 11.071. article 11.071 Davis, emphasis supplied 2. See Ex 221-223 otherwise All unless indicat- 1996). (Tex.Crim.App. ed. McCormick, legis- at concluded that applicant with one full “bite each lature, apple.” by using “original” word in Sec- 4(a), article 11.071to be the tion intended for II. proeedure[] for the exercise of “exclusive 5 of article the in- Under section jurisdic- original this Court’s application may as un- stant be dismissed 5 of the Texas tion under Article Section filed. when the Constitution,” appointed interpre- Today’s majority concludes that Court, we should invoke our tation was correct and that we V, Constitution, jurisdiction. Texas Sec. Art. original jurisdiction to the have reach 5, provides: However, application. merits the instant Subject regulations may to such be ignores following majority the the fact that law, prescribed of Criminal the Court Davis, legislature the amended article 11.071 Appeals the Judges and thereof shall have “original” with the replaced the word power the to issue writ of cor- the word was to “initial.” This done make and, matters, pus, in criminal law the writs clear article to 11.071 was not intended mandamus, procedendo, prohibition, original jurisdiction affect under this Court’s Judges certiorari. The and the Court V, the Section 5 of Texas Constitu- power have thereof shall the to issue such Therefore, original juris- may necessary protect tion.2 we do have other writs as be to jurisdiction judgments. or reach the enforce its diction to merits of instant power upon application, The Court shall have the affi- to should we so choose exercise or davit otherwise to ascertain such mat- it. necessary

ters of fact as be jurisdiction. exercise of its III. pointed my I out in As in Ex Parte dissent majority screamingly believes “[t]he 216, 947 (Tex.Cr.App. 232 S.W.2d speed up of Article to obvious intent 11.071is 1996): legislative history “The demonstrates corpus procedures the habeas purpose pro to amendment was Ante, Therefore, ma- cases ...” at 611. power grant vide this with greater to speed our concludes should be (em extraordinary writs in criminal cases.” interpreting concern when statute. phasis original). supports law Case However, majority from believe the works V, interpretation Art. 5 of our Sec. faulty premise. If the “scream- See, Renier, Parte Constitution. Ex 734 ingly Legislature obvious intent” (Tex.Cr.App.1987), S.W.2d 349 and State ex statute, why enacting the is the State allowed Appeals rel. v. Holmes Honorable Court of District, upon request, respond to unlimited the Third 885 399 S.W.2d application? Nevertheless, to a See Tex.Code Crim. (Tex.Cr.App.1994). five mem 7(a).3 Court, bers in an authored Proc. Ann. art. 11.071 State, Legis- Certainly, In Marin v. 271-272 the converse is true: When p. meets, r.Ap (Tex particular lature after a statute has been .C construed, meets, Legislature judicially Legislature changes particu- and the When the after a construed, statute, judicially presume Legislature lar has with- we intended statute, changing presume Leg- previously applied out to to the construction alter islature intended the same construction should that statute. applied be Lewis continue to to statute. v. State, 351, 127 812 58 Tex.Crim. S.W. case, requested In the State (App.1910). Additionally, the Construc- respond an additional 221 to received provides: examining tion "when amend- Act today writ. existing legis- legislation to ments to determine rejects ever re- the instant without intent, presumed lative it is that the required response ceiving the State. from relating affecting case aware of arising County, cases out of Harris similar the statute.” Tex.Gov't Code Ann. Sec. 311.023(3); and, State, respond routinely granted year to one v. 843 State Grunsfeld (Tex.Cr.App.1992). the writ “screamingly believe the ap- obvious” intent sel. Because refuse to correct an provide of article competent pointment 11.071 was competent less than upon counsel. jurisdiction This belief is based the literal invoking to reach the 2(a), text of provides: article 11.071 application, merits of the instant I dissent. “An applicant represented by shall be com-

petent counsel unless the elect- has J., OVERSTREET, joins. Indeed, date, proceed ed to ...”4 pro se appropriated approxi- OVERSTREET, Judge, dissenting. mately $6,000,000.00 compensation counsel.5 The undeniable outcome of con- Today majority gives meaning a new receiving competent demned inmates lady holding with a the scales of blindfold expedited process. is an justice, dispatches as it three

row inmates toward execution chamber without meaningful review of their habeas IV. Smith, Laroyce claims. parte Ex Lathair Today, a majority of the Court chooses S.W.2d 610 which sections of article 11.071will be strict- Ramos, Roberto Moreno S.W.2d 616 ly loosely adhered to will and which con- and Ex Paul Rich majority strued.6 The dismisses the instant Colella, (Tex.Cr.App. ard 977 S.W.2d 621 filed, piously contend- 1998), opinion, and Smith written Ramos ing the In doing, law must be followed.7 so My previous Colella orders. dis written majority wholly ignores WE failed replaced sent Smith and with is withdrawn duty competent appoint By our counsel. dissenting opinion. choosing this selective construction of the statute, willfully majority violates the To of dismiss Smith Colella as abuse Applicant intent of article 11.071. has not lawyers untimely writ because their filed writ apple” had his through “one bite at the no applications on borders barbarism because Indeed, fault of his own. the fault lies with punishes such action the applicant for his by appointing this Court than competent less lawyer’s It pun- tardiness. would be fair to counsel. attorney by ish the not providing payment. majority accept statutory fails to It applicant, would also fair to the responsibility appointing competent justice better, coun- serve the concept appoint of majority alleges 4. The counsel disre- Womack also chastises dissenters garded stating uphold “[o]ur information from Court's Executive are to oaths constitu- Ante, country regarding Administrator the time tions and to file this laws of this and state.” writ. Ante, true, implication at at 611. His If this is then CLEARLY followed, dissenters believe all laws must be incompetent rep- counsel was and her continued counsel, including appointment competent of applicant resentation of violated Tex.Code Crim. following 11.071, we are somehow not our oaths. Why Proc. majority Ann. art. intimations, resent his and I continue to believe acknowledge screamingly fails to obvious that each of Tex.Code Crim. section Proc. Ann. applicant statutorily truth that did not receive the equally is valid and 11.071 should have competent mandated assistance of counsel is frus- intended effect. trating, appears especially when our staff was regarding failings. on notice counsel’s addition, majority 7.In astounds me when they statutory exceptions state the fil- for late paid 5. Counsel in the case has instant ings "only applicants are who not should $6,000.00. excess of have been convicted or sentenced death. person, This a is not such nor does emphasizes Ante, in italics the "shall” majority anyone contend he is.” at 611. Even citing requiring the statute dismissal of cursory a review Ante, untimely applications. at 611. Not once "screamingly makes it obvious” that majority requirement does the even mention the does contend not have he should been convicted appoint fact, competent that this Court applicant alleg- "shall” coun- or sentenced to death. italics, citation, why sel. No no twenty no consideration es he should not have been reasons Perhaps Judge whatsoever. Womack can cite convicted to death. the ma- or sentenced For me misrepresent to a case determines blatantly which which "shall” to so these facts is only disingenuous downright disturbing. shall be followed. not but ability applications affects of lawyer timetable. of a new and reinitiate the inmates to seek federal review. indigent Texas Row inmate death row Must the Death law, to federal includ punishment Apparently, pxxrsuant the ultimate of death with- suffer ing Death out benefit of review because Anti-Terrorism Effective State Penalty Act, seq., et lawyer’s A U.S.C. death his tardiness? “no,” says “yes,” say penalty applicants but I even if who seek federal subject procedural three default hold alone. I shall address all review are stand pursue their they properly if do not together. ings these cases claims to a resolution before this Court. common thread all three cases is One Reed, 255, 109 Harris 489 U.S. S.Ct. v. row indigent in- Carrier, (1989); Murray v. 103 L.Ed.2d 308 of a requested appointment mates who 106 S.Ct. 91 L.Ed.2d 397 U.S. lawyer, appointed lawyers rep- this Court (1986). them, lawyers appli- resent and all three day, clearly cations the 90th lawyer’s deny If a actions limit of the time set out stat- outside meaningful of his death row review ute, V.A.C.C.P. Smith dis- claims, question then I whether inmate not a missed as filed because of standing in line to be executed has received not delay. Colella is dismissed as counsel. effective assistance of Common- 37-day delay. filed because of a Ramos is if you me that have effec- sense tells though there denied on merits counsel, re- tive with all due assistance filing, delay being with such having no spect, I that worse than consider grounds on Texas Constitutional excused having an lawyer all because ineffective lawyer due course law because the relied lawyer legitimacy gives sense trial incorrect instructions from the on degree of assistance proceeding, yet reading understanding the law instead lawyer equivalent having at all. situations, Apparently himself. some majori- thing about only death row inmates are due a little more due The consistent ty’s its disposition course of law than others. cases is inconsis- these justify dispo- tency, apparent need to its Smith, Judge Womack is critical me regard to the sition in the cases without speak being because and write of fair. He legislative intent of the statute fair- and/or pays lip are also service oaths “[o]ur ness, disregard and a reckless uphold the constitutions and laws.... based on its own stare decisis. Without clear: law is this court shall dismiss this doubt, and Colella are treated Smith Smith, it was filed late.” Therein differently than Ramos. lies question supra, My penalty litigation. criticism of death Some “yes” Judge Womack can be answered others, differently than being treated “no” —Was the in Ramos filed gasoline today clearly throws on the Court leaps “yes.” late? answer out as the fire. Judge who said the law is clear now deviates. Keller, though At least dis- reasons, dispa- I dissent to the For courage position, with agree her death row rate treatment way interpret the law the each time. same the dis- specifically inmates of Texas and unwilling seems to effectuate the The Court position I concur of Smith Colella. Legislature it enacted entire will of the deny relief Ramos. decision saying goes 11.071. It without up pro- Legislature wanted to finality disposition and add cess penalty I do not be- cases. to throw

lieve that intended fairness on its head and out Constitution unwilling

the door. The also seems disposition into

to take consideration how

Case Details

Case Name: Ex Parte Smith

Court Name: Court of Criminal Appeals of Texas

Date Published: Jul 15, 1998

Citation: 977 S.W.2d 610

Docket Number: 36512-01

Court Abbreviation: Tex. Crim. App.