Ex Parte Torres

exclusively gunshots. with the cir- Under case,

cumstances of this the lack of scientific

certainty as to what that substance was is

not sufficient to establish a denial of due

process.

Believing has failed to estab-

lish a to relief under of her claims process, deny

or under due I would relief.

MANSFIELD, J., joins this dissent. parte Raymond

Ex TORRES. 72,358, 72,359.

Nos. Appeals

Court Criminal of Texas.

En Banc.

April

471 applications filed af- subsequent

these Applicant’s previously ter final applications challenging these convic- filed tions. The trial court further found that the applications specific not contain sufficient do establishing facts that the claims have not Wice, Houston, Brian appellant. W. for in presented and could not have been that, Cook, previous applications; by pre- or Attorney, Mike Asst. District Hous- evidence, ton, Paul, juror Austin, ponderance of the no rational Atty., Matthew State’s for applicant guilty beyond have found State. could (emphasis given by trial reasonable doubt Before the court en banc. court). Therefore, the trial concluded court applicant provi- was barred under the OPINION 11.07, 4(a), sions of Article Section V.A.C.C.P., having from this Court consider KELLER, Judge. applications. the merits of the instant Applicant pleaded guilty without the bene Applicant’s trial court also concluded that plea bargain charges aggravated fit of a of they claims were barred because had been kidnapping aggravated sexual assault. rejected appeal.3 raised and on direct We The trial punishment, court assessed en applications filed and set these for submis- convictions, prior hanced fifty two at 4(a) if sion to determine Sec. bars this Court case, years confinement each to run con considering from the merits of these subse- secutively. appeal No taken at was quent applications and to determine whether time. In applicant applications filed for applicant’s claims are barred because post-conviction pursu relief these causes appeal. were raised and on direct 11.07,1 provisions ant to the alleg of Article addressing We hold that there is no bar to ing among things, other that he was denied the merits of and we re- right appeal. his granted ap This Court proceedings. mand those for further claims plicant appeals out-of-time in both convic tions, noting requested other “[a]ll relief 4(a) §1. prejudice.” is denied parte without Ex Tor 4(a) provides: § Article 11.07 res, 71,680 71,681 (Tex.Cr.App. Nos. & deliv 1993). May ered Appeals The Court of (a) subsequent application If Sec. 4. for judgments reformed the to delete the cumu writ is of habeas filed after final orders, lation but otherwise affirmed con application of an initial chal- victions. Torres Nos. 14-93-00603- conviction, lenging may the same a court 14-93-00604-CR, &CR 1995 WL 144547 grant not relief consider merits or Dist.], (Tex.App. [14th delivered subsequent application based on the unless — Houston 30, 1995, pets.). March no application specific contains sufficient establishing facts that: September applicant filed subse- quent applications for habeas relief the current claims and issues have challenging pre- trial court these same convictions not not been and could have been substantially alleged previously original applica- for the same reasons sented previously appli- The trial court found that tion or in a considered writs.2 appeal guilty 1. All references to articles are to the Texas Code waived his provid- represent of Criminal Procedure unless otherwise him- denial of ed. self. Applicant alleges reasonably he denied ef- subsequently cause for fur- 3.We remanded this fective assistance of counsel because trial counsel factfinding. ther The trial court conducted preserve appellate failed to for review the denial findings evidentiary hearing and made oral Applicant’s request represent himself at We will address those find- fact on the record. trial, allegedly and that counsel was ineffective in ings opinion. later in this failing non-negotiated to advise that his appeal pendency under of the direct cation filed this article because restores the legal for claim appeal, any remaining the factual or basis substantive claims hence, appli- on the date the premature, subject unavailable would become Brown, previous application; cant filed the dismissal. See Ex Parte evidence, (Tex.Crim.App.1983)(no by a preponderance of the jurisdiction pending). while is direct but a violation of the United States juror have Constitution rational could question remains whether the beyond applicant guilty rea- found the presented kind of here constitutes dismissal sonable doubt. 4(a). § disposition” “final To under answer added). (Emphasis For a claim to barred be question, determine we must first 4(a), under it must filed after the “final statutory ambigu language whether disposition” application. The of an initial language ous. If the statute final apparently trial court assumed that a the ambiguous, give plain we must effect to granted the disposition occurred when we doing meaning of its words unless so would re- out-of-time and “denied” all other Boykin lead absurd results. v. 818 today, lief prejudice. without We decide (Tex.Crim. 782, 785-786 & 786 n. S.W.2d however, disposition,” “final con- that a as a App.1991). language the of statute When 4(a), templated by § in the did not occur may ambiguous, we look to extratextual present case. the guidance determining stat factors for meaning addressing the of Before meaning. ute’s Id. disposition,” phrase “final contained the 4(a), disposition” appears § accurately phrase the The “final we must characterize statutes, civil, disposition ease. both criminal nature of in the numerous rarely phrase is not determining disposition, In the nature of a but defined. global beyond is no we mere to the defined in Article 11.07and there look labels substance Young, the term in the Code of Criminal of the action taken. v. 810 definition of State plain usage of (Tex.Crim.App.1991) The definition or 222-223 Procedure. S.W.2d order); phrase disposition” appears “final (appealability of a trial court State of Moreno, (Tex.Crim. vary to the from one section of the Code 332-333 Tarver, purpose next. the narrow of determin App.1991)(same). See also Ex Parte For due, 195, 198-199 (Tex.Crim.App.1986) ing probation when fees are the relevant 725 S.W.2d (whether disposition” as the probation “final revocation is administra section defines probation. Gray, of a on Arti judicial); placement Ex defendant tive or Parte 19(d). section, 42.12, a (Tex.Crim.App.1983)(whether § In another wit relief cle a disobeyed prohibition). Al ness is considered to have sub sought is mandamus or any day if court on poena he does not attend though we stated the other claims of disposition final or continuance prejudice, the true effect “before the “denied” without 24.06(1). Article This particular case.” those claims. a disposition our dismiss contemplate final signifies language appears to jurisprudence, a “denial” our writ any disposi includes disposition of the case the merits that we addressed preju tion, it is a dismissal without particular means whether claim while a “dismissal” dice, mistrial, adjudication on the for or an the claim we declined to consider contrast, Agree By By the Interstate merits. claim’s merits. reasons unrelated appears to contem “denying” ment on Detainers Act granting one relief on claim disposition” being as either an a “final remaining preju plate claims “without adjudication or dismissal of on the merits dice,” were not address we indicated prejudice. pending charges Article with remaining claims. ing the merits of those 111(d).4 Hence, 51.14, “fi- phrase Moreover, granting an Article out-of-time because all operate for final provides as a in relevant section of the Act This informations, indictments, part: com- untried detainers have plaints of which on basis Any request disposition made for final (a) on lodged....If trial is not had pursuant Paragraph shall prisoner hereof added).6 disposition” meanings, practice, nal can have various In federal a successive ranging petition may dismissed if: from situations which a mere dis- prejudice missal without will suffice to situa- (1) allege judge finds that it fails adjudication require tions that on grounds relief new or different for above, merits. Unlike the statutes discussed prior determination was on . language we find no contextual clues in the or, merits concerning precise meaning Article 11.07 (2) grounds al- if new and different are 4(a). § phrase of this therefore We must leged, finds that the failure turn to extratextual factors to determine the those petitioner to assert meaning. statute’s grounds prior petition in a constituted abuse writ. legislature given guid has some 9(b) 2254; governing § Rule Rule U.S.C. concerning ance the extratextual factors we 9(b) governing (emphasis § 28 U.S.C. may construing examine in statutes. Wé inserted). numbering added and also 28 See consider, matters, may among other (b). 2244(a) & An U.S.C. “abuse of the (1) object attained; sought to be writ” under situation occurs when the under which the circumstances statute petitioner prejudice” fails to show “cause and enacted; raising claim in the new Zant, petition. McCleskey v. 499 U.S. (3) legislative history; 493-495, 1454, 1469-71, 111 113 S.Ct. (4) statutory common or provi- law former (1991). serving L.Ed.2d 517 While the same sions, including laws on the same or purpose finality—the basic two situations — subjects; similar involve different above considerations. (5) consequences particular of a construc- Zant, (11th 342, McCleskey v. 890 F.2d 346 tion; Cir.1989), 467, affirmed, 499 U.S. S.Ct. (6) administrative construction (1991). of the stat- 1454, 113L.Ed.2d 517 The first situ ute; and primarily designed prevent ation is to a de attempting fendant from to achieve a differ (7) (caption), preamble, title emergen- and ent outcome with a different on a claim cy provision. already against him resolved while the sec Gov’t.Code,§ Tex. 311.023.5 designed prevent ond situation is to harass legislative history The delay. is instructive. An ment and Id. examination of Montford, Senator the author of the bill that federal abuse of the writ doctrine shows that 4(a) 11.07, § added to petition Article stated on the successive would not provision “adopts Senate floor that the Appli have been barred in federal court. abuse of currently the writ doctrine used cant’s claims would not be barred under situ (1) practice which limits an inmate to ation because were not resolved on federal application merits, one time for wilt of cor not and claims would be pus except, emphasize except, and I want to barred under situation because situation 440, claims, exceptional applies only circumstances.” S.B. to new 19, 1995, 1, April Tape (emphasis Side 2 claims were before. raised indictment, information, State, 462, complaint (Tex.Crim.App. or contem- tell v. plated hereby 78, prison- 1985); (Tex.Crim.App.1968), to the return of the Barbee original place imprisonment, 924, er to the such denied, t. 395 U.S. cer S.Ct. indictment, information, complaint or shall (1969). 23 L.Ed.2d 241 effect, be of further force or and the court dismissing prej- shall enter an order same with expressly 6. While the floor discussion related to udice. cases, explained capital Senator Montford had inserted). (Ellipsis hearing subsequent an earlier committee that the provision part 5. This of the "Code Construc- provision applied capital writ to both and non- Act,” applies tion which to the Code of Criminal capital cases. S.B. Senate Committee on Procedure, at least to the extent it has Justice, March, 14, 1995, Tape Criminal Side subsequent amended or reenacted the 60th or 311.002(2). legislature. Tex. Gov’t Code Pos- meritorious, to purpose provision,

The ex of those claims was found as remaining plained legislative history, resulting also coun in the of his dismissal against applying lan through sels the successive writ claims his own. fault of guage to cases dismissal one. “any approach prevent like method” would Representative Gallego, sponsor earlier, the House unaddressed renewal these bill, to emphasized of the the intent limit merits, claims, regardless their even person apple”: at the convicted “one bite Legislature though applicant what the did that, everything practical effect of such And we tell individuals intended. time, you possibly approach can raise first would be to force an expect you initially, litigating we to raise it one bite the merits of his choose between apple, .[Answering of the one shot... regaining writ of habeas claims filed, questions]. I think have we’ll less appeal that he to ineffective assis- lost due attempting because we’re here what do do not tance of counsel. We believe say, everything is to raise at one time. a choice Legislature to force such intended get apple. you If You one bite of the have upon applicants. 11.07 there, put kitchen all to stick the sink it And, go through in there. we will those Legislature’s reliance Given time, decision, make a one at upon of the writ doctrine federal abuse this, one—one—every but none of week give applicants limit their intent to you petition currently file a new which apple,” that a “one bite believe basically happens. what initial must en disposition” of an writ “final S.B.440, 18, 1995, floor, May Tape House disposition relating to merits of all tail a A in (ellipsis and bracketed material Dispositions relating Side raised. claims serted). Legislature appli While the limited labeled while merits should be “denials” they clearly apple, cants one bite dispositions should be unrelated to merits contemplated full that that bite would be a “dismissals,” but, regardless of the labeled recognized corollary requiring The to one. disposition, we will given previous to a label applicant raise all of his claims at once to to disposition that look to the substance of pro in that every is that claim raised initial subsequent writ is determine whether a ceeding and decided. would be considered by § A is to the disposition 4. related barred makes if it the merits or merits decides Interpreting phrase the “final dis appli merits of the determination that the mean the the en position”, to See claims can never be decided. cant’s method, in tire writ would result (10th Evans, 543, v. 64 F.3d 547 Hawkins seriously Leg to consequences adverse the Cir.1995)(disposition is considered “on expressed through intent as islature’s to if the court refuses determine merits” “any legislative history. Under the method” default). procedural of state merits because files interpretation, person who his writ case, only several present In one of pending, appeal is prematurely, while direct application was in initial claims apple” effectively lose his “bite of would (granting out-of-time on the merits decided dismissed, application be because his would not de appeal). remaining were claims application would be dis subsequent and a refusal to nor was the on the merits cided upon filing prior, of his based missed that a determination decide the merits result, application. As a premature Because never be decided. merits could never ad of his claims would be merits Applicant’s claims disposed of some of “any consequences under an dressed. merits, there was unrelated to the reasons even worse for interpretation are method” Applicant’s initial writ and disposition of final Applicant Applicant’s position. person raising those claims 4 not bar does filed Legislature intended—he did what the subsequent writ.7 at once. One number of different claims may writ. Twy not in a second writ be considered upon Ex first However, also relied Parte 7. The trial court 951, Twyman, first writ man, issues in the (Tex.Crim.App. 952-953 716 S.W.2d 1986) rejected merits. Id. rejected on the in a had been proposition that issues for the State, appeal plea. 2. Effect of direct fore the Flowers v. 935 S.W.2d 131, (Tex.Crim.App.1996). On direct 131-33 Generally, previ a claim which was appeal, applicant in- raised several ously appeal raised and on direct cluding denying that the trial court erred cognizable corpus. on habeas Ex Parte right represent him his to himself and Acosta, 470, (Tex.Crim.App. S.W.2d guilty plea involuntary because it his was was 1984). Schuessler, See also Ex Parte upon promise appeal. of an conditioned (Tex.Crim.App.1993). S.W.2d 862 n. 6 Appeals Appli- The Court of concluded However, applied this doctrine should not be plea knowing voluntary, cant’s appeal where expected direct cannot be therefore, he waived the trial court’s failure provide adequate record to evaluate the grant represent permission him himself. question, claim in might and the claim be Torres, slip op. at 5. The court reasoned that through substantiated additional evidence there was insufficient evidence the record gathering in corpus proceeding. a habeas he, counsel, judge “that his trial and the trial instances, appeal most the record on direct laboring impression were under false inadequate develop an ineffective assis [applicant] appeal judge’s could denial of Duffy, tance claim. Ex Parte 607 S.W.2d Id., represent slip his himself.” (Tex.Crim.App.1980). 512-513 See also op. at 4. The court therefore to ad- refused State, Jackson v. 877 S.W.2d 772-773 applicant dress denied his whether (Tex.Crim.App.1994)(Baird, concurring; J. Id., represent slip op. himself. at 5. Be- Vasquez appeal cause the direct contained in- record (Tex.Crim.App.1992))(Benavides, J. dissent sufficient evidence to evaluate the ineffective Moreover, ing). inadequacy appel issue, rejection assistance we hold that the late record in these situations is due to the appeal his claim on direct does not bar relit- inherent nature of most ineffective assistance igation of his claim on habeas to the very claims. The ineffectiveness claimed gather extent that seeks to may prevent containing the record from introduce additional evidence not contained necessary information to substantiate such a in the direct record. Duffy, Moreover, claim. at 513. the trial ordinarily record does not reflect Ineffective assistance claims doing failing counsel’s reasons for to do original applica- In both his actions of complains. which defendant relief, Applicant alleged tions for Vasquez, expan 830 S.W.2d at 951. While involuntary were because may accomplished sion of the record in a on an assurance from the based trial, motion for new that vehicle is often alleged that his of self- he could raise denial inadequate because of time constraints and representation appeal following on conviction generally because the trial record has (2) failing and counsel ineffective in to was Jackson, been point. transcribed at this by guilty applicant pleading inform that with- Further, at mounting 772 n. 3. plea bargain, out the benefit of a he would be ineffective assistance attack in a motion for appeal alleged unable to denial of self- inherently unlikely new trial is if trial counsel representation appeal. on claim direct With during required remains counsel the time to regard present application, trial coun- to the Hence, file such a motion. in most ineffec claiming sel submitted an affidavit that he tive assistance a writ of cor habeas applicant’s guilty plea did not know that pus gathering is essential to the facts neces raising prevent alleged would denial of sary adequately to evaluate such claims. appeal. self-representation on Trial counsel present example case is an evidentiary confirmed these remarks in an inadequacies of the of in direct evalu hearing conducted after our last remand or- ating ineffective assistance claims. It is hearing, well- At end the trial der. of that, bargain, plea findings settled when there is not a to the effect court made oral of fact (1) knowing voluntary guilty plea applicant a waives counsel did not inform defects, nonjurisdictional self-representa- including depri guilty plea all a waive the would (2) issue, pled process, occurring applicant vations of federal due tion would not have be- advised, by applicant record. Ex Parte Brand guilty supported if he had been so represent (Tex.Crim.App.1989), improperly ley, was to denied 887-888 trial, denied, applicant improp- at was himself 498 U.S. 111 S.Ct. rt. ce erly (1990). case, hearing self-representa- on present denied his 112 L.Ed.2d impaneling however, tion motion before the findings of we are unsure which jury. cause accept. Consequently, remand this findings after the trial court enter However, counsel’s affidavit and the trial considering obtained in all of the material findings court’s connection the initial with with initial and subse connection writs conflict with those writs. quent writs. (filed 3, 1993) Trial counsel’s affidavit March in connection the initial writs denied with BAIRD, Judge, concurring. applicant’s allegations. Specifically, trial Zant, McCleskey v. it is true that While applicant counsel stated that the reason de- 1454, 113 111 S.Ct. L.Ed.2d following U.S. guilty pleas to enter the voir cided (1991), prejudice dealt the “cause and began with dire he to realize the was because standard,” is, important it by is more consider severity pro- his of situation. That trial, that standard was devel jury context which ceeding applicant with the faced conviction, oped. years upon minimum of 25 to life him, weighed heavily against the facts only applica- habeas courts consider State only questionable defense witness was of state crimes. tions from inmates convicted of just credibility having released from — However, pe- federal courts consider habeas parole applicant on TDCJ-ID would —and from convicted either titions defendants jury prior inform of his convic- have to crimes. The courts state or federal federal if he to take stand in his tions chose McCleskey applica- considered the Further, willing the trial defense. prisoner. tion The “cause state give plea the benefit of a procedural prejudice” standard established cap from offer he had the State: precludes federal courts from con- bar which years confinement on each sentence. in- applications from state sidering habeas consequences him as to Counsel advised Ann. Tex.Code Crim. Proc. mates. Because pleas, entering specifically, of his unitary exclusively art. 11.07 deals with non-negotiated pleas guilty, he was waiv- courts, the system state of state inmates and non-jurisdictional

ing and that the all defects McCleskey mis- on majority’s reliance self-representation denial of his reason, 473-474, placed, ante at and for appeal. not be on Counsel stat- could raised join majority opinion. I cannot Applicant’s hesitation on ed there part pleas to enter his and that only judgment of Accordingly, join I voluntarily. willingly entered the Court. findings made of fact and The trial court response origi- these conclusions law PRICE, OVERSTREET, MEYERS and (order 5, 1993), April applications nal dated JJ., join opinion. this asserted in the affidavit found that facts true, said counsel were and that trial court together with the official records facts totality repre-

demonstrate applicant was sufficient

sentation afforded reasonably as- effective

protect his The trial court conclud-

sistance of counsel. voluntarily knowingly

ed that primary case. in the

entered by trial are not bound

While we action, findings in a habeas

court’s if are accept findings

generally those

Case Details

Case Name: Ex Parte Torres

Court Name: Court of Criminal Appeals of Texas

Date Published: Apr 16, 1997

Citation: 943 S.W.2d 469

Docket Number: 72,358, 72,359

Court Abbreviation: Tex. Crim. App.